Vol. 30 No. 2 (February 2020) pp. 25-29COLONIAL LIVES OF PROPERTY: LAW, LAND, AND RACIAL REGIMES OF OWNERSHIP, by Brenna Bhandar. Durham and London. Duke University Press, 2018. 265pp. Paper. ISBN: 978-0-8223-7146-5
Reviewed by Maria Monica Parada-Hernandez, Department of Political Science, Rockefeller College of Public Affairs & Policy, State University of New York at Albany. Email: mparada@albany.edu.
The history of white colonialist dispossession seems to have no end. At present, peasant and ethnic groups dispute rights over a land they claim as their own and face the giants of the state and the private sector who do not hesitate use violence, disguised as law, to eliminate – and in some cases extinguish – these groups. The nineteenth-century heritage of land administration currently operates through much more sophisticated mechanisms that attempt to erase the racial, class and gender origins of disputes over natural resources. The book COLONIAL LIVES OF PROPERTY: LAW, LAND, AND RACIAL REGIMES OF OWNERSHIP by Brenna Bhandar is a reminder of what path we have traveled to reach this point and why it is important to think of ways to stop it.
The central argument that guides Bhandar's research is that modern property law developed along with and through colonial modes of appropriation and accumulation. According to Bhandar, the mechanisms and techniques through which modern property law operates, including legislation, legal judgments and everyday practices, are closely related to the formation of racialized legal subjects. The result of this process is what she calls "racial regimes of ownership": a concept that, inspired by Cedric Robinson's (2007) theory of racial regimes, explains why it is not possible to understand the notions of “race,” “ownership” and “property” in isolation, and instead must be considered in relation to each other.
Bhandar's analysis falls between Marxist and post-colonial studies, two approaches that allow her to denounce the complicity of the law in maintaining economic inequality (a topic that contemporary property theorists have already thoroughly studied) through the creation of racial subjects. Consequently, the author explores the relationship between race and property rights from the reconstruction of the political and philosophical bases of private property law in four colonial settings: British Columbia, South Australia, and Israel/Palestine. [*26]
The selection of case studies is curious. Bhandar explores the colonization process in four different places and historical moments without clearly establishing the methodology for choosing the cases. Her objective with the case studies is to identify specific legal forms of land appropriation in different property regimes – specifically common law and Zionist philosophy – and then trace their legal nature in order to show that the temporalities of colonialism are multiple and uneven. In other words, juridical forms appear in different times and spaces and there is no guarantee that “a given articulation of race and property ownership will appear in the same configuration across time or jurisdiction” (p.12). Thus, the cases used in the study adequately illustrate the existence of racial regimes of property, but questions about the selection of cases and how they relate to each other remain unanswered.
Bhandar uses four sources of information in her analysis: (i) the writings of political economists such as William Petty (famous for his contributions to technologies for the measurement of land and productivity) John Locke and Joseph Trutch, who, since the XVII century, inspired the Commonwealth legislation; (ii) secondary literature that contributes both to the study of the cases and to the understanding of the legal concepts related to property rights; (iii) legal norms and official documents issued by the colonial governments studied; and (iv) judicial cases that contribute to understanding how the legal subjects were shaped and their relationship with ownership to this day.
The book is structured in four chapters that each correspond to the study of different juridical formations – the legal techniques used in racial regimes of ownership. First, Bhandar explores the concepts of “use” and “self-possession” (brought from Locke), mechanisms that served to justify the imposition of an “ideology of improvement” based on the quantification and measurement of value in the British Columbia colonies. She argues that this ideology created a racial hierarchy in which a lower value was assigned to the lives of the indigenous people who were read out from the logic of commodity abstraction. Colonial administrators therefore saw the natives’ productive systems as a synonym for backwardness and uncivilization, justifying the dispossession of the lands from the hands of the natives. Thus, the policies of preemption and homesteading became the “primary legislative devices” (p. 38) to achieve land appropriation in British Columbia.
The second legal form analyzed by the author is the system of individual titles by registration which eliminated the criterion of [*27] prior interest in or possession of land. This system was applied in the colony of South Australia long before it was implemented in the United Kingdom. It was based on the idea that land was a commodity without owners, ready to be appropriated and cultivated. The possessors, who had inhabited these territories for thousands of years, were encoded as “savages” or “natives” who could be saved through processes of assimilation (the registry system). She argues that this phenomenon reflects the “logics of abstraction that determine the nature of both the commodity form of landed property and the racial abstraction [taxonomization of human life] of the Savage” (p. 81).
In the third section, Bhandar again analyzes the ideology of improvement, but this time as an element of Zionist philosophy that saw the cultivation methods of the Palestinians as inferior and underdeveloped. According to the Zionist narrative, the return to the land – at the expense of the dispossession of the Bedouins – and the overcoming of exile was achieved through cultivation, or the mixture of Zionist blood with the earth. For the Bedouins this implied appealing to specific forms of cultivation as legal mechanisms to demonstrate the historical occupation and possession of the land.
The last chapter is dedicated to what the author calls the “identity-property nexus” or the legal link between individual identity and access to land that ultimately creates a legal “status.” The link between both concepts is evident in the creation of the “Indian” legal status to classify the people of the First Nations under Canadian law. Additionally, Bhandar demonstrates how this status has been used to deprive women, showing that property law is not only built in relation to race but also to gender.
This book covers many topics and debates about property theory. In some moments the reader might feel overwhelmed and in need of a pause to fully digest the ideas that are defended throughout the text. However, analytical ambition leads Bhandar to make three very relevant contributions to the literature of property theory.
First, she argues that the emergence of juridical forms, what she calls Racial Regime of Ownership, is tied to the advent of modern property rights and modern conceptualization forms of race (and gender). Second, she claims that the emergence of legal forms is not governed by a linear logic of progress, starting with possession and evolving until the registration system is perfected, but rather can appear in different times and places and coexist among them. And, third, she shows that while this regime is far from inevitable, its [*28] permanence in time depends on a continuous renewal that allows it to prevail and dominate over other forms of relationship with the land.
The message that Bhandar hopes to spread with this book is clear: it is possible to transform this land tenure and administration regime. Her conclusion invites theorists to imagine revolutionary forms of response that alter the power of domination of property law over racialized and feminized bodies. For her, this is only possible through the recognition of the visions and ways of life of groups that have historically been marginalized by these regimes.
However, Bhandar's vision, which is perhaps too hopeful, makes evident the dilemmas that her transforming proposal entails. In particular, her defense of marginal visions of land tenure tends to be somewhat romantic and condescending to the more traditional (informal) systems that privilege communal tenure without stopping to think that these systems can in turn generate hierarchies that are a barrier of access to land for certain individuals –for example, women.
Finally, Bhandar explicitly indicates at the outset that she will not analyze the forms of communal tenure, despite suggesting that they are one of the possible mechanisms of resistance to racial property regimes. Paradoxically, ethnic groups have made use of that legal status created by the colonial state to demand their recognition as subjects of rights before the state that occupied their territory, and even today they make use of judicial systems to demand full ownership rights over ancestral land. I believe that the analysis would be richer if these collective tenure systems such as reserves were included as these were the product of negotiations between colonial and native governments. The task of filling this void is left to other restless minds.
COLONIAL LIVES OF PROPERTY is a very powerful text that could well be used in peasant and ethnic claims for land rights and in the advocacy activities of grassroots social organizations. It is unfortunate that the complexity of the language used in the book distances the author from the general public, although it brings her closer to the academic community to whom she speaks without hesitation, recalling the obligation that political economists and other theorists must imagine new ways to break the cycles of domination, inequalities, and violence.
REFERENCES: [*29]
Robinson, Cedric. Forgeries of Memory and Meaning: Blacks and the Regimes of Race in American Theater and Film Before World War II. Chapel Hill: University of North Carolina Press, 2007)
© Copyright 2020 by the author, Maria Monica Parada-Hernandez.
