Colonial Lives of Legality and Possibilities for Resistance?

The Disorder of Things is delighted to host a symposium on Brenna Bhandar’s new book, Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership. First up is the symposium organiser, Alvina Hoffmann, a PhD student in IR at King’s College London. She is review article editor, social media officer and member of the editorial board of Millennium: Journal of International Studies. She is co-convenor of the research group Doing International Political Sociology. Her thesis investigates the annexation of Crimea, the Sami people’s struggle over land rights and the Internet users’ claims over digital spaces through the lens of rights claims practices which intersect in various institutional settings such as the UN.

Brenna Bhandar’s Colonial Lives of Property takes its readers on an analytical journey through various empirical and temporal contexts, excavating the racial assumptions underpinning the development of modern property law which animate contemporary settings of settler colonialism. In Bhandar’s own words, the book’s main focus lies “on the political ideologies, economic rationales, and colonial imaginaries that gave life to juridical forms of property and a concept of human subjectivity that are embedded in a racial order” (p. 22). The book is an impressive study which skilfully combines archival material, legal cases and fieldwork to showcase the various practices of appropriation of land and its rationalisation through property law regimes. It will appeal to scholars from various disciplines studying the development and contemporary manifestations of racial capitalism, Indigenous people’s dispossession and resistance struggles, and the history of property, territory and sovereignty more broadly. This interdisciplinary form of inquiry not only helps shed new light on questions surrounding the enduring forms of racial and economic inequalities, but also offers thoughtful reflections on new political imaginaries of property.

In this post, I want to draw out three points that Brenna Bhandar’s rich and thoughtful book raises. First, I will show how her historical analysis of processes of racialisation constituted political subjects in colonial settings. Then I will focus on practices of legality and consider ways in which her analysis can be applied in international law with regards to Indigenous peoples and their claims to land rights. The final part will consider Bhandar’s conclusive thoughts on alternative political imaginaries of property which draw on an array of scholars and resources which inspire critical theories and practices of such imaginaries.

Through her historical mode of analysis, Bhandar traces processes of racialisation and the ways in which these became interconnected with ownership, informing decisions and formal legal regimes over who can legitimately own and use land. Rather than referring to racism solely through nineteenth century scientific racism as an ideology, this historical analysis sheds light on the multiple ways in which “racism” and racialised political subjects become constituted through various discursive constructions, legalisations, and systematisations prior to the nineteenth century. Bhandar’s analysis of English political economist William Petty and his appointment as physician-general to the army in Ireland is a case in point. In the practices of land appropriation in Ireland, Petty developed a new method of valuation of wealth derived from land and people, reducing both to economic units (p. 42). Land and labour became “inextricably bound to one another”. How precisely did Petty construct and represent “the Irish”? In his accounts, Petty ridiculed Irish customs, manners, ways of life and social practices, rather than focusing on physiology as in biological racism:

“Their lazing seems to me to proceed rather from want of Imployment and  Encouragement to Work, than from the natural abundance of Flegm in their Bowels and Blood; for what need they to Work, who can content themselves with Potato’s, whereof the Labour of one Man can feed forty […].” (Cited in Ted McCormick (2009) William Petty and the Ambitions of Political Arithmetic, p. 191)

For Petty, intermarriage between Irish and English persons was a solution to overcome this lack of industry and discipline. Thus, land use was central in formulating English superiority over the Irish, and as Bhandar notes “by the time Adam Smith penned the Wealth of Nations, civilization was not only linked to particular ways of holding and using land but was an explicit reflection of the existence of commercial rule” (p. 46).

Source: The Down Survey of Ireland:

From the colonisation of Ireland and the formalisation of property law with its material manifestation in “emergent concepts of race and racial inferiority” paired with new logics of measurement and quantification, Bhandar turns to the British North American colonies, where this logic becomes transposed into the Lockean ideology of improvement. In this new colonial context, Bhandar shows how “new concepts of value as the basis for legal categories and justifications for ownership based on […] use” became naturalized (p. 50). This historical mode of analysis allows to visualise this circulation of legal doctrines, trace the emergence of ideologies and deconstruct the legitimation discourses of policies of appropriation and dispossession through various contexts.

Legality and the Indigenous political and legal subject

More broadly, and taking me to my second point, this opens up inquiries into ‘the law’ and the meanings attached to juridical practices. As Bhandar states at the start of her book, her uses of the term “juridical” “denotes the fabrication of legal techniques that define legality and illegality, produce legal subjects, operate as a form of governance, and in all of these guises functions as a form of disciplinary power” (p. 12). Thus, juridical processes can be viewed as a boundary-drawing exercise of legal experts who master the language and therefore are capable of including or excluding political subjects from it. Bhandar takes the readers through settler colonial contexts and state legislation in Canada, Australia, and Israel and Palestine. Could her analysis equally be expanded to international law? For instance, in tracing the emergence of the “Indigenous political subject” in international law through various legal cases and declarations, is there room for an analysis of these struggles over the definition of legal norms? Might we see different kinds of modalities of resistance, or is international law doomed to fail, posing another form of co-optation with its own profound limitations failing to address deeper structures of on-going dispossession?

Similarly, how is indigeneity constituted in international law, but also through political subjects who claim this status? How are property law regimes used in litigation to resolve land claims? As Bhandar states, “many scholars have written about the value and necessity of engaging in strategic forms of litigation to ameliorate various forms of discrimination, while at the same time acknowledging the profound limits of this approach” (p. 178). The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) from 2007 is one such example of constituting Indigenous peoples as subjects in international law. How is this political subject constituted in relation to property law? Are these intertwined genealogies? Can this political subject inhabit political spaces without being mediated through liberal property rights regimes, or when scaled up, state territories? As Bhandar states earlier, territoriality plays a central role “in colonization and contemporary modes of dispossession” (p. 25).

One example that mirrors these considerations is the Awas Tingni v. Nicaragua ruling in the Inter-American Court of Human Rights from 2001. The case is considered by some as a landmark judgment in advancing Indigenous people’s protection of their land rights. The Court held that Nicaragua had violated several rights as it had “not demarcated the communal lands of the Awas Tingni Community, nor has the State adopted effective measures to ensure the property rights of the Community to its ancestral lands and natural resources […]”. What are the practices of evidence gathering, what can be presented in court and what remains outside the legal analytical gaze? As Joe Bryan shows, mapping Indigenous lands has become a central practice to document the basis for land rights claims. Maps played a central role in the Awas Tingni judgment, allowing the community to present evidence for “patterns of customary use and occupancy that constituted a form of property” (2009: 29).

This judgment has inspired other Indigenous groups to advance similar claims, while at the same time anchoring the crucial importance of mapping in order to secure recognition. These maps were used to prove that the Indigenous community inhabited and claimed a particular area stemming from an imagined pre-colonial past (or from time immemorial). As Joe Bryan shows, these maps did not depict more recent histories of “logging by North American companies, […] targeting of those lands as an area for resettlement of displaces indigenous and mestizo populations, and the violence of the 1980s that forced Awas Tingni along with 90 other villages in the region to abandon their homes for refugee camps” (ibid). Based on these recent histories, land rights struggles remain contentious. What is more, the World Bank and other international organisations build on this trend of mapping Indigenous lands in order “to assimilate indigenous knowledge into development practice” (ibid). This example shows the highly contentious field of co-optation and possible resistance practices that Indigenous communities find themselves in, operating between territorialising state logics, the potential of regional courts and their human rights litigation and usurpatory neoliberal international organisations and corporations.

Bhandar, too, problematises the gathering and presentation of evidence in courts when making land rights. In addition to Bryan’s example of mapping, she highlights the role of expert witnesses and historians presenting oral history testimony to the courts “as proof of historical occupation of the lands by the claimants” in the Tsilhqot’in Nation v. British Columbia judgment from 2014 (p. 72). In considering collective memory and passing down of oral history, how did this aboriginal perspective “decenter the English common-law concept of improvement as the basis for an ownership right?” (p. 71). In her analysis, Bhandar shows that the court did in fact consider aboriginal ways of living on the land, including seasonal cultivation for subsistence rather than commercial purposes. This shows a clear shift towards the perspectives of Aboriginal claimants.

Yet Bhandar does not simply acknowledge this development uncritically. As she states, we have to analyse the modes through which the “aboriginal perspective” can be considered in the courts in the first place. In other words, this perspective “can be rendered legible within an epistemological frame shaped by an anthropological discourse that has long been embedded within racialist discourses of human development” (p. 73). The problematic classification of the Tsilhqot’in as nomads or semi-nomads is one such case in point. 

 Repertoires of alternative political imaginaries

Source: Miguel Covarrubias (1940) Plate IV. Economy of the Pacific. Pageant of the Pacific. At David Rumsey Historical Map Collection.

In the final parts of the book, Bhandar opens up possibilities for different political imaginaries of property. This alternative emerges from relationality “as a potential political resource for a politics of decolonization and de-propertization” (p. 179). Would it be sufficient to decolonise property law, or should property law be seen as part of broader structures of “modes of governance developed during the era of colonial expansion and seemingly perfected by neoliberal rationalities”? (p. 183) In fact, there are various forms and repertoires of contestation, resistance, counter-legalities and subversion of modern laws of property present throughout history that can be drawn on (pp. 183-4). According to Bhandar, “the legal imaginary, in this case as in others, remains too constrained in its conceptualization of justice and political-social transformation to go beyond a meaningful if basic balancing of interests” (p. 189).

Drawing on André van der Walt and his critical analysis of property law and eviction in South Africa, Bhandar highlights the importance of “perspective from the margins – those of the evicted, property-less, impoverished – to either complement or indeed replace the lexicon of traditional rights that is the focal point of much property doctrine” (p. 185). In order to imagine a radically different form of property, Bhandar proposes three steps: First, understanding and studying “the ontologies of property relations” suppressed in colonial forms of dispossession and appropriation. Second, imagining alternative forms of relating to land, and finally, as part of wider socio-political transformations, reimagining the self and our relations with one another (p. 193). This highlights the urgent need to dismantle contemporary capitalist (political) subjectivities based on possession and entrepreneurship.

The book offers an in-depth analysis of the histories of property relations, deepening the readers’ understandings of the colonial lives of property as they live on in contemporary capitalist and settler colonial settings. In the final parts of the book, Bhandar points to a vast scholarship that can propose alternatives and resistance strategies. Such alternative political imaginaries can be rooted in Indigenous forms of legal knowledge, communal knowledge construction and subjectivities, as she develops her points based on scholars such as Leanne Simpson, Patricia J. Williams and John Borrows. As a final question, and relating back to my previous point, I would like to ask what role transnational and international political imaginaries, both in its legal and spatial manifestations, can play in decentring property and territory as a central form of social organisation. In other words, how can we challenge territoriality as spatial control through alternative forms of relating to land beyond property?


One thought on “Colonial Lives of Legality and Possibilities for Resistance?

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