On the British Empire Among Empires, and on Property Beyond Sovereignty

This guest post, from Kerry Goettlich, is the second contribution to our symposium on Brenna Bhandar’s  Colonial Lives of Property. Kerry is a PhD candidate in the IR Department at the London School of Economics. His research is on the historical relationship between space and international politics, particularly the origins and consequences of linear borders. His latest work is ‘The rise of linear borders in world politics’ in the European Journal of International Relations. He was also recently co-editor of Millennium: Journal of International Studies.

As part of the fieldwork for Colonial Lives of Property, Brenna Bhandar witnessed the seventieth razing of the Bedouin village of Al-Araqib by the Israel Land Authority since 2010 (p. 116). Some Bedouin living under Israeli authority are now so used to having their homes destroyed that they have begun building them with particularly pliable materials in order to make reconstruction easier. Others destroy their own homes in order to avoid being charged bulldozing costs by the state. One of Bhandar’s interviewees ‘paid for someone to build his house and paid the same person to destroy it’ (p. 117).

This is just one of many ways in which Colonial Lives of Property powerfully demonstrates the meaning of a ‘history of the present’. The book is a compelling history of private property regimes in settler colonial contexts which never loses sight of what makes this material important for scholars—and, I think, particularly IR scholars—today. It takes us through many centuries of different articulations of the concept and practice of property, each abstracting land space in different ways, and shows us historically how property came to be the upholder of racial and gender inequalities that it is today. It brings together a wealth of theoretical resources to do this, from legal studies scholars such as Cheryl Harris and Alain Pottage to more general social theorists such as Stuart Hall and Cedric Robinson, and many more. The book without a doubt demolishes any account of property as natural, as somehow separate from race and gender, or as emerging fully formed within a self-generating Europe. These, in my reading, would be the main counterarguments, and after reading this book, it would be quite difficult to sustain any of them.

With that in mind, what I want to offer in this post is less of a critique of Colonial Lives of Property than some reflections on some relevant questions it raises. In particular, I focus on two things that are not as prominent here as one might expect: non-Anglophone imperialism and the sovereign or imperial centre. The point here is not that these things are missing, but rather to think about how their relatively subdued roles might help us appreciate the book’s significance differently.

A Comparative Perspective

One of the central claims of the book is that modern property law arises out of and is shaped by its historical role as one of the main strategies of legitimizing colonial land appropriations. In the contexts the book focuses on, that was certainly the case, and that covers a lot of ground, so to speak. Bhandar takes us on a whirlwind tour through Ireland, Canada, Australia, and Israel/Palestine, with some mention also of Hawai’i, Bengal, the United States, England, South Africa, and Spain, along with references to Norman, ancient Roman, and Roman Catholic legal systems. While this does not mean we are limited to British and Anglophone empire, there is a considerable focus on parts of the world within those categories.

There can, of course, be good reasons for concentrating analysis on colonial relations within one particular imperial network, as it can allow us to make relatively specific connections across time and space. I, for one, would certainly not try to claim a competence in any language other than English which is good enough to do the kind of textual analysis that Bhandar engages in with the writings of the seventeenth-century English scientist and philosopher William Petty. However, at the same time, the way we specify our historical material is not unrelated to the conclusions we come to. At some points, the reader could perhaps be forgiven for wondering whether a consideration of other empires might have influenced the narrative of the book. If ‘Property law holds a unique and distinctive place in Enlightenment thought and ensuing discourses of modernity’ and if ‘The English common law of property became the sine qua non of civilized life and society, an axiom sharpened at the expense of indigenous peoples throughout the colonial world’, what counts as ‘Enlightenment thought’ or ‘the colonial world’ (p. 4)?

Drawing attention to this imperial focus gives us room to think about the implications of the book beyond what is explicitly in it. Certainly the idea and practice of private property operates today on a global scale which is much more extensive than the British Empire ever was. But was British settler colonialism somehow unique, compared to other empires which incorporated a settler component? And did the dynamics of the British settler frontier play some specific role in the globalization of certain kinds of ownership? The book seems to suggest that this might be the case, if only by choosing to focus squarely on the British Empire as the context for the origins of modern property law.

If this were part of the argument, it would not be alone. Patricia Seed’s Ceremonies of Possession, for example, compares different ways in which European empires claimed land, arguing that the signature move of British settlers was to build fences. This is closely related to the literature on the enclosure movement, within which private property emerged in England. Were English settlers, then, specifically predisposed to think of land appropriation in terms of enclosed private property? The Spanish, by contrast, conceived of empire in terms of conquest, Seed argues, and where the law was important, it was less the laws of property than the laws of war. The empire here that was being claimed was not necessarily made up of private property but included virtually everything to one side of the Pope’s global demarcation line, and Native American labour was extracted without being clearly abstracted from the land. Allan Greer, moreover, argues that, at least in spatial terms, property in the early modern Spanish Empire was specified and surveyed much less carefully and precisely than it had been in some pre-Hispanic Mesoamerican communities. What about other settlers?

It is important, on one hand, to avoid essentializing the English. Political Marxism has already been thoroughly critiqued for reducing capitalism to a narrow theoretical abstraction which can only be found emerging in the English countryside, and in arguing that colonial property law of a particularly English kind had a special role to play, we would be risking a Euro- or Anglocentrism of a similar kind. Yet on the other hand, there are important reflections to be undertaken concerning where and when exactly private property, of the particular racialized, gendered, and dispossessing kind that the book refers to, was prevalent and provided a legal framework for empire.

Provincializing Sovereignty

Colonial Lives of Property has a lot to tell us about the importance of property law for modernity. Modernity here includes, for example, conceptions of civilization, rationality, development, and capitalism.

Property law holds a unique and distinctive place in Enlightenment thought and ensuing discourses of modernity…It is also a central fixture in philosophical and political narratives of a developmental, teleological vision of modernization that has set the standard for what can be considered civilized…Thus not only was property law the primary means of appropriating land and resources, but property ownership was central to the formation of the proper legal subject in the political sphere (p. 4).

As with a focus on the British Empire, this covers a lot of ground, but it is not everything—nor should it be everything. Also as before, reflecting not only on what it is, but also on what it is not, may help us better understand its significance. In particular, it is interesting, and perhaps somewhat refreshing, that neither the sovereign nor the nation-state plays a major role in the narrative of the book. For one, the legal constructs that make up the focus of the book do not originate from the imperial centre but rather from individuals operating with some agency relatively autonomous to the state, such as William Petty, Robert Torrens, and Joseph Trutch. While these individuals were involved in government, their ideas on property also derived from activities such as surveying.

The colonial state as an actor is important in certain ways, particularly as the keeper of a register, but in that sense seems somewhat passive when compared to those who conceptualize what property is in the first place, let alone the settlers themselves who take up private property, enclose land, and extract labor, and the indigenous peoples who fight back. When Petty thinks about the value equivalence of land and people, for example, he doesn’t seem to worry about whether or not that land falls under English sovereignty or a kind of Irish sovereignty. Sovereignty or effective rule seems to be simply assumed unquestioningly by many of these people, or even thought of as deriving from property itself. In places such as Australia once the Dutch had given up any possibility of an imperial claim, the establishment of sovereignty was simply not considered to be problematic, with no European challenge to British authority. In contrast, its appearance to the British as an utterly empty land was precisely what made the reconstruction of property titles both possible and desirable. People such as Torrens saw in this imagined clean slate a remarkable opportunity to experiment with titles not dependent on an expensive and insecure system of conveyance, but instead relying on a centrally held register.

From a legal studies perspective, this point about sovereignty may not be particularly surprising, but from an IR perspective, I would argue that it tells us something important about the relationship between property and sovereignty. Sovereignty is a legal concept with a historical lineage that continues to be covered quite thoroughly in IR, from many different theoretical angles, and is integral to the story IR tells about the origins of modernity. Property is arguably less so, with the notable exception of some working within the Marxist tradition. This might seem to make sense given that IR tends to be interested in the constitution of a polity insofar as it sheds light on that polity’s relationships with other polities. Sovereignty clearly does this, as it specifies the extent to which a polity is legally immune to the decisions of other polities, while property seems to be something much more internal to the participants in one polity. Bhandar, however, shows us a variety of historical contexts in which property, at least as much as sovereignty, if not instead of it, shapes the conceptual field on which struggles for legitimate authority over space are contested.

This speaks to questions IR has recently been working through. A forthcoming forum in International Studies Review, for example, questions how far the concept of sovereignty can travel across time and space. Taking concepts which are central to traditional IR and rethinking their definitions and significance, as the forum shows, can be one effective way to deal with Eurocentrism in international relations, particularly where it concerns global modernity. Yet if the European concept of ‘sovereignty’ remains the reference point for others, even when we stress that non-European polities arrived at something very much comparable to European sovereignty well before Europe did, we still may not have not moved past Eurocentrism. No doubt the problem is a difficult one however it is approached.

If, however, Colonial Lives of Property is able to narrate the history of a key part of global modernity without much reference to sovereignty, or even nation-states, perhaps these are actually not the all-important markers of modernity that we might have thought them to be. This may allow us to deal with Eurocentrism in IR in a different way. Unlike the story IR traditionally tells about competing European polities, which became sovereign states in 1648 when they cast off feudal and religious ties among each other in favour of ‘reason of state’, and later became progressively more democratic nation-states, centering the settler colony shows modernity in a different light. In Bhandar’s account, it is the increasing layers of abstraction involved in the ownership of land, and later the incorporation of essentializing ‘Native title’, which provides a historical understanding of modernity in politics among nations. Depending on whose experience we are interested in, then, property may in some cases be a more promising starting point than sovereignty.

Colonial Lives of Property is an excellent book on its own terms, which does much to help us understand what property is, what it does, and where it came from. Seeing it also in terms of how the historical contexts it deals with relates to other empires not dealt with, and in terms of the relationship between property and sovereignty, I would argue, makes it crucial reading for IR scholars.

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