Can property be justified in an entangled world?

ABSTRACT

As a liberal institution, private property is based upon a view of the natural order that prioritizes the individual human being over our social existence and over our nonhuman others. Colonial expansion was enabled in part by the misrecognition and denigration of indigenous land management practices. Forms of property were imposed that were incommensurable with the sustainable relationships formed by original owners with land. Given the ubiquity of the Anglosphere’s degraded and abstract understanding of property, is it possible to imagine the decolonization of property? Can property be rethought to close the divide between person and thing, and to better acknowledge the normative values of mutuality and care between people and place? What resources are there within mainstream property theory that might allow for such a reconstruction of property?

KEYWORDS:

• Decolonization
• property theory
• posthumanism

Introduction

Until 20 years ago, a relatively common topic in political philosophy concerned the justifications for property and associated matters: broadly speaking, what justifications exist for individuals to appropriate resources, hold legal rights to the exclusive control and use of such resources, and to accumulate them in the face of scarcity and inequality. In recent years, the political philosophy regarding the justifications for property has become less prominent, while the legal theory of property has taken on questions that connect the justification for property with its legal characterization: given that property does exist as a socio-legal institution, what is its (defensible) legal form, where is the boundary between private rights and the commons, and what change might be required in order to accommodate the social, economic, and environmental imperatives of a complex world? Legal theory of a progressive orientation now involves a push to redefine property in order to rebalance it toward responsibilities and to find ways of strengthening common and public interests rather than individual rights. The social aspects of property have been emphasized, in an effort to contest the assumption that property has a pre-given or even natural form. The issue of whether property can be justified at all and in what form has been submerged in this necessary but limited emphasis on redefinition and critical delimiting.

It may, however, be time for a more thorough reconsideration of the normative foundations as well as the nature of property. The institution of property as understood in the Anglosphere was consolidated in a context of rapid ideological change. The individual as a political and legal entity was on the rise in European, and particularly English, thought and the aggregation of external things to the person or legal subject served to shore up the political freedom and status of the individual. Both the normative and the descriptive forms of liberal property theory assume a pre-social individual and its clear differentiation from a world of objects. The rise of private property in the common law world as a distinctively liberal institution and aspiration also coincided with extensive private appropriations of land both in the enclosures and clearances, and in colonial expansion (Thompson, 1968, pp. 213–233; Richards, 2000; Lebovics, 1986; cf Marx, 1947, pp. 736–800).¹ As John Locke notoriously wrote ‘in the beginning all the World was America’ (Locke, 1988, p. 301) and the connections between his Second Treatise of Government, in particular, Chapter V ‘Of Property’, and his involvement in colonial America has been extensively canvassed (Armitage, 2004; Arneil, 1994; Lebovics, 1986). In this early liberal world view, indigenous peoples were under-utilizing land and not sufficiently improving it, if at all (Weaver, 2005; Graham, 2011, pp. 85–133) thus counteracting the biblical imperative to use what God had given. Moreover, the differentiated, nonhuman, and exploitable world was thought to be illimitable: the natural world appeared, by contrast to the human sphere, open, available, and vast.

Private property was (and is) constructed upon a series of assumptions, including that the socio-political human subject is existentially separate from the physical environment; that indigenous peoples did not (and do not) cultivate the land; and that the natural nonhuman world is infinitely exploitable. All of these assumptions are now known to be incorrect or, at the very least, extremely dubious. The individual entity and the separation of subject from object, human from nonhuman, have been entirely dissolved in posthumanism with its orientation towards entanglement of the human and nonhuman spheres (Bennett, 2010; Gilbert, Sapp, & Tauber, 2012). Indigenous peoples’ intimate connection with, and use of, land is now better understood (Bird Rose, 1996; Pascoe, 2014). Extractive industries are known to destroy rather than improve the ecological qualities of land (Graham, 2011, p. 128). Environmental resources are known to be finite and rapidly declining.

It is worth bearing the history of property in mind when thinking about the present circumstances that might inform an approach to the basis for property: these include (for a start) the environmental situation and accelerating degradation of planetary resources; unconscionable levels of material inequality; increasing scarcity of physical matter and land to be distributed on a personal proprietary basis; and the consequences of historical dispossessions, in particular, slavery and colonialism. These last abuses of property-power have never been redressed and continue to be practiced in altered but barely disguised forms.

In addition to its crumbling onto-epistemological foundations, private property is at the centre of global inequality, ecocide and new forms of colonialism. The presence in both common and civil legal systems of the ius abutendi, the right to neglect and abuse property, is completely at odds with the values of care and sustainability. Private property is ethically as well as socially and politically questionable, and the issue of the justifications for property can no longer be sidelined. Is property justifiable at all, and if so in what form, in an entangled world? Is decolonization compatible with some form of property (and if so what) or does it require completely new forms of human-nonhuman relating? If theory were to start from the present state of knowledge rather than from outdated and indefensible views, what political and legal forms of relating between the human and nonhuman worlds would be possible? Before asking these questions, however, it is necessary to confront the ideological obstacles to a frank reconsideration of property. The first part of my paper considers some of these obstructive factors, and the second aims to engage more positively by exploring some of the elements for a re-imagined property that engages with a project of decolonization.

Obstructions

Why is property so ingrained as a concept and a practice, and what needs to change if its power over social and legal ordering is to be loosened? There are undoubtedly many ways of answering these questions, and in this section, I focus upon three points in particular. First, I consider the range of constructions of the ‘natural’ order that underpin the idea of property. Naturalized concepts include most obviously the very idea of property as a right that people hold, but are also to be found in the presumed elements of the social order – that it is human only, that it consists of individuals, and that the physical world provides means to ends that are entirely human. A second and possibly even more problematic hindrance to change is an unwillingness to question property by those who benefit most (or at all) from it, even in the face of evidence that the origins of our property rights are highly dubious. Third, property as a legal concept and as a practice is supported by its entrenched status and facticity: private property is reiterated as a state of affairs and over many centuries has been normalized – turned into law – as a result.

The ‘natural’ order of things

Property is a socio-legal artefact that obtains at least some of its power by being naturalized: that is, the idea of property is sustained in part because an ingrained imaginary invests it with a status that is natural or at least pre-legal.

Outside property scholarship, the idea that property is natural or pre-legal seems integral to a lack of questioning about its existence and its appropriateness as a fact. It is almost unthinkable to question the propriety of property as an institution. In Australia, this unthinkability was illustrated in the early 1990s when the Mabo case made it possible for Indigenous peoples to claim native title under certain very limited conditions.² Despite the obvious constraints of the concept of native title, fears were quickly raised about the decision threatening all forms of private property including the most shocking of all – suburban backyards (see eg Dunbar, 1994, p. 119). Such fears had no basis in law but the debate of the time illustrates that questioning property as an institution is indeed inconceivable – even where such private ownership is based on a theft by one group of the land held by another group (more on this shortly).³ Although the core concept of property is assured in legal thought, it is nonetheless acceptable to question its margins, for instance regarding the distribution of property, which is often regarded as an economic and political question unaffected by the justifiability of property as such. It is also acceptable to question some of the formal limits of property. How long should a patent last? When should the state exercise its right of compulsory acquisition? What property rights accrue to persons in relation to different objects? When can the public interest intrude upon the uses of property? None of these issues affect the existence of property as a form, though a diminution of the scope of a property right or any effort at redistribution through, for instance, tax policy, remains vulnerable to the conservative criticism that it is an attack on freedom and fundamental property rights. Such attacks are only audible in public discourse because of the unquestioned presumption that property has a pre-legal form.

Within moral and political philosophy, property is sometimes understood as a natural right of individual persons (Mack, 2010) though its historical nature is also frequently addressed through the lens of political economy (Nichols, 2018; Thompson, 1968). By contrast, legal theory usually has its focus firmly on property as an existing legal artefact rather than an indemonstrable ‘natural’ claim. Within legal theory, property is therefore more often seen as either defined by (though not necessarily completely originating in) positive law or as entirely constituted by positive law. There exists, in other words, a spectrum in the ontology of property from the entirely natural to the entirely legal, with a mid-way position that property is partly based on some extra-legal conditions (perhaps social, perhaps natural) and given definition and particular form by law. Thus, even where its status as a completely natural right and form is doubted, property is often nonetheless imagined as pre-existing law, such that law protects it or recognizes it, rather than entirely creating or constituting it. It is as though a pre-legal world establishes an inchoate right that law then affirms or diminishes. The inchoate right might be understood to take a given form, meaning that the nature of property is more or less governed by its existence. Alternatively, it may be seen as a balancing of different interests and values meaning that the legal recognition of property reflects mainly political, moral, and social choices (Alexander, Peñalver, Singer, & Underkuffler, 2009; Underkuffler, 1990).

Despite a great deal of nuanced analysis of the basis of property as an institution, most commentary nonetheless rests on a set of taken-for-granted positions about the natural order of life and law. Essentially, those positions are first, that the human world is qualitatively different from the nonhuman world and second, that the natural reference point of human society (and therefore law) is the individual (Davies, 2016; cf Godden, 2011). These two assumptions are embedded within the very idea of private property: the fact that there is property is thinkable only because of the differentiation of subject from object, while its private nature aligns with the attention given to the unitary subject as the central example of an owner, if not the only one. Property as an artefact or institution is removed from its deeper socio-political setting as a construction of a peculiarly European history meaning that the assumptions shaping that context remain under-analysed within all forms of property theory. Simply, the (apparently natural) differentiation of human from nonhuman provides the basis for appropriation of the other while the (again, assumed as natural) individualization of persons as socio-political entities forms the basis for private property as the default form.

Some presumptions of a natural order based in human exceptionalism are therefore common in property theory regardless of whether property is seen as based in natural law/rights or as an essentially human invention. These presumptions obstruct a reconsideration of property that moves beyond the individual and the nature-culture division.

Defective titles

Ideas about the natural order and in particular the foundational character of the human as separate from the nonhuman are a first obstacle to rethinking property. A second and perhaps even more serious problem stems from the privilege and power associated with exclusive control of resources. In a world where status and security are associated with relative wealth, self-interest is institutionalized and rewarded. In consequence, the socio-political impediments to relinquishing or even questioning the privilege associated with property are very considerable.

Complacency about what is ours is therefore also partly explained by willful blindness, as William Blackstone suggested several centuries ago. Blackstone is a well-known mouthpiece for the law of colonial acquisition. He is also known for his description of property as a ‘sole and despotic dominion’ – an explicit connection of property with an idea of sovereignty through the image of the despot. (Even though dominium and imperium were separated in Roman law and are technically separated now, they were aligned in feudal law and have obvious connections as legal ideas: Cohen, 1927.) Blackstone is less well known for the ethical qualms he expressed about property: ‘Pleased as we may be with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour without examining the reason or authority upon which the laws have been built’ (Blackstone, 1766, p. 2).

‘Blackstone’s anxiety’ as Carol Rose termed it (1998) is especially pertinent for the beneficiaries of colonialism as we have very good reason to be ‘fearful of some defect in our title’. Whatever the situation in Europe, can it be said that land ownership in Australia is not tainted, even completely undermined, by a forceful appropriation that, whatever it might have been at the time, would very clearly be illegal under modern international law? In Australia, we live on unceded territory: as Irene Watson says, Anglo-Australian law has power, but not authority (Watson, 2017). This leaves us, as Maria Giannacopolous has argued, with a ‘sovereign debt’ at least as large as the Australian land mass (Giannacopoulos, 2017). But any questioning of the resulting defect in our title is constantly deflected by the fiction that a new blank slate was established by colonialism. How is it, despite knowing that no land in Australia was ceded by Aboriginal nations and that the appropriation of land rested on illegitimate foundations, we nonetheless ‘rest satisfied with the decision of the laws in our favour without examining the reason or authority upon which the laws have been built’ (Blackstone, 1766, p. 2)? How is so little questioning of property explicable? How does property co-exist with frequent recognition statements that the land is (for instance) Kaurna land – ‘always was, always will be’? The situation regarding the level of recognition of original Indigenous title varies across the colonized common law world (cf Ruru, 2015) but, as the ongoing struggles of indigenous inhabitants illustrates, one aspect at least of our situations is shared: there remains less than full honesty about the nature of colonialism and as a result our legal systems are still resisting to some degree the consequences of adequate accountability to Indigenous peoples.

In this context, the obstacle to reopening the justifiability of property appears to be of a psycho-social order (cf Nadler, 2018, pp. 371–372): colonial collective anxiety may mean that it is simply too dangerous to confront past wrongs or to take responsibility for the fact that title is based on dispossession.

‘Theft’ becomes law⁴

The proprietor, the robber, the hero, and the sovereign (for all these titles are synonymous) each imposes his will as law. (Proudhon, 1994, p. 210)

It is in this context that the force of performative understandings of property is revealed (Blomley, 2013). It is not only that huge sections of Australia were claimed and appropriated by various declarations of the British crown, though these beginnings of the Anglo-Australian law-property-sovereignty protection racket are certainly of significance. The point is also that land was then progressively appropriated and held, by force and often by murder. The violence is perhaps no longer as evident as it once was, and this is because the performance of property has become so secure – it has the quality of a fait accompli and (therefore) of being normatively routine.

The transformation of fact into norm is therefore an important part of this story. In Australia, the imposition of sovereignty is legally understood as an ‘act of state’ that frames and founds a system of law. Law consequential upon an act of state cannot then turn on its creator (so to speak) and critique its own ‘legal’ foundation as it didn’t need to have any such thing. The acts of the British Crown in appropriating the Australian land mass are not justiciable.⁵ After more than 200 years, the rights to land of Indigenous peoples in Australia became justiciable in Mabo, but only as a form of proprietary right that did not carry any implication of Indigenous nationhood, sovereignty, or self-determination.

Where territory is unceded, the legality of the state therefore remains notoriously one-sided – self-proclaimed, self-perpetuating, and entirely authoritarian. The normalization of colonial taking occurs via the passage of time, but also by the exercise of top-down power and a slippage from what is factual to what is normal to the idea that a state of affairs, reiterated in performances of property, has right on its side. It is for this reason that establishing ‘facts on the ground’ is a key technique of colonial dispossession. The point is made by Nomi Stolzenberg, discussing Israeli settlements in occupied Palestinian territory: she says that ‘de facto possession has a strong tendency to ripen into de jure possession, or at least into some kind of social acceptance of the legitimacy of the current occupant’s occupation’ and ‘Everyone understands the power of the status quo not only to perpetuate itself but also to legitimate itself.’ Prior possession is erased and the normative hold of new facts/possession is strengthened over time. ‘It takes time for facts to acquire their normative power, and the strength of that power grows over time’ (2010, p. 116). In the words of critical geographer Richard Howitt ‘What is taken is easily assumed to be settled. And what is settled is easily assumed to be possessed.’ (Howitt, 2019, p. 2) Whether the object in question is an area of land under occupation or a cultural artefact stolen and exported to a European museum, establishing de facto possession as against the prior owners is one method of promoting colonial normality or ‘settlement’ that becomes the legal norm. It is only by virtue of critique, the positing of alternatives, a different performance of property, and the establishment of a new normal, that facts on the ground might be transformed into other facts and, from there, other norms.

The speed with which new facts can be normalized might appear difficult to credit, but they are usually accompanied by the exercise of power as well as by justifications or some pretext designed to render force more palatable. John Locke’s labour justification for private property essentially says that when a self-owning person mixes their labour with the natural world, they own the resulting products (Locke, 1988, pp. 287–288). It was a rationale designed to promote enclosure and private enterprise in Europe but more significantly to unleash private property across a so-called new world imagined as undeveloped and open for private taking (Lebovics, 1986, p. 578). It justifies ownership by a certain class and race of man. The labour of maintaining and reproducing human labour is famously ignored in this matrix (Clark, 1977, p. 722) as are the methods of land use practiced by First Nations peoples long before any colonists imposed European mining and agriculture on what they perceived to be under-utilized lands (Pascoe, 2014). The quality of being a self-owning person has also been denied to those regarded as somehow naturally unfree, whether as a result of their race, their gender, or their class.

Summary: critical erasures

In sum, there are a series of critical erasures in the production of private property as a truth in modern Australia, each of which acts as an impediment to change.

First, the socially constituted, political, and hence contestable nature of private property is erased by appeal to a natural order formed in the image of the liberal-Christian appropriator. At its most expansive, this takes the form of a claim that human beings hold a natural right to extract resources and own private property which is exclusionary of others, and which takes the form of dominance of subject over object. However, faith in a less explicit but equally embedded natural order is also to be found in the presumption of the human-nonhuman division, an assumption that erases both the specificity of land and locality as well as the entire nonhuman world. Within the human world, the natural and archetypal owner is generally understood to be the liberal individual, a move that obscures communities and the public interest (Godden, 2011). And a final element of this ideological naturalization of property is grammatical – the idiom that insists that law ‘protects’ or ‘recognises’ property, instead of making it.

Second, property in colonial and neo-colonial contexts can only be produced by erasing the prior and continuing title of Aboriginal peoples. The lawful relationship of land to people that has subsisted for millennia is overwritten both by colonial non-recognition and by present-day complacency and willful blindness. Australian colonial law has now apologetically and belatedly retrofitted its common law with native title as a partial acknowledgement of this erasure. The connection to land of Aboriginal peoples is used in the definition and recognition of native title though rendered in a form that can be understood by Australian courts (Godden, in press). However, the dispossession represented by the existence of the common law is not undone by native title: rather, native title is only a further contrivance designed to manage prior title in a way that is consistent with colonial law.

Third, underpinning both the naturalization of property and willful blindness about title, normalization of the facts of dispossession over time erases their origins in illegality. The transition of facts into norms disguises the facticity of any beginning, such as an invasion, but also renders ordinary and apparently natural a state of affairs that is entirely a social performance and exercise of power.

Decolonizing property

Liberal culture can imagine a wide variety of resources as property, including water, other people, land, land that others have an enduring connection to, the moon, a right of way, a poem, an innovation. Not all of these resources are in fact turned into property by law but they are imaginable as property. It is evidence of the perniciousness and emptiness of this concept of property that it is extendable equally to a person (through the now-defunct concept of slavery) and to a plastic bucket, and that it can imagine land as two-dimensional space without ecological characteristics or heritage. In the capitalist world, most forms of property are interchangeable: the value of a parcel of land can be calculated as a finite number of plastic buckets, making it entirely abstract and detached from the place itself. Property, including land, is dephysicalized, in order that it can fully participate in capitalist circulation (Graham, 2011; cf Marx, 1947, pp. 67–73; Vandevelde, 1980).

By contrast to the character of property in liberal legal systems and its promotion of radical fungibility, many indigenous cultures find the European concept of private property in land unimaginable because the range of its formal and informal incidents – excludability, control, separation from the human, objectification, fungibility – are completely unsuitable as a structural basis for the mutual care of land and people (Bawaka Country et al., 2016; Watson, 2011, pp. 628–629). This does not mean that Indigenous peoples did not have pre-existing title, possession, and custodianship though this has only belatedly been legally recognized. But the notion of owning is variable. European notions of ownership and property centre on the allegedly free and separated person/subject and fail to acknowledge the co-emergence of human and nonhuman in a meaningful landscape. As a result, our ‘ownership’ is shallow and abstract, disconnected from the object of ownership, and from any ethical bonds that arise in relation to it. The contrast with indigenous ownership is very clear:

As most Aboriginal groups see it, they ‘own’ the land in the strongest possible sense: the clans in question, distributed across the area claimed, came into being with the land itself. The land was made meaningful as it was peopled in a network of interconnected places. Through these places the land owns them as they own the land. (Verran, 1998, p. 241)

The reciprocity of people owning land and land owning people is the key point here. The Eurocentric view of property is based on the idea that its objects, including land and the Earth more generally, are completely passive and inert, meaningless in themselves, rather than an active participant in social relationships. Rather than reciprocity, European and in particular liberal forms of property are essentially about dominance and control of the land as an other.

A critical step in the decolonization of property is – as summarized in the first part of my paper – to de-essentialize and de-naturalize the suite of concepts entrenched in its legal constitution. Critiques based on unpacking the historical and political constructedness of taken-for-granted concepts are fundamental to decolonization (Godden, 2011). For instance, previous considerations of justifications for property have often carried a veneer of universality but answers are necessarily situated in and respond to perceived political and economic imperatives in a historical and socio-cultural context. Familiar justifications, though purportedly general, are located in time and space and invested with layered cultural imaginaries and an inexorable thread of liberal and neoliberal ideology. Whether these situational imperatives are expansionist and colonial, as Locke’s was (though couched in terms of natural rights), or economic and utilitarian, or framed around the need to secure individual political freedoms, or equality, there is nonetheless a demonstrable link between history and the alleged foundations for property (Arneil, 1994; Graham & Bartel, 2017; Nedelsky, 1990). Despite the pretence at universality, it is therefore impossible and even deceptive to think about property abstractly, as though there is some rightness underlying it in the fabric of human co-existence and relationship with the physical world.

Critique and historicization of concepts are essential to the project of decolonization. But what possibilities exist for more positively reimagining property theoretically and instituting a more constructive set of practices? Is a decolonization of property even possible, given its homogeneity with colonialism? Does decolonization require the abolition of property, rather than its reimagination? Or can property be reimagined sufficiently to enable it to be decoupled from colonialism?

Phrasing my questions in this way assumes that what I am calling ‘property’ has a specific form and legal-historical pedigree strongly aligning it with colonialism (and, not co-incidentally, with capitalism, with racial hierarchies, and with patriarchy). There is, of course, a debate over whether all societies have ‘property’ and what form it takes. It is undoubtedly the case that all societies have some formalized system for engaging with and relating to land and resources. Are such systems ‘property’ or is the concept too distinctive to be extended in this way? Certainly, it would be extremely dubious to claim that private property rights and the ‘excludability’ defining them (Gray, 1991), is universally recognized. In the Anglosphere, ‘property’ takes a very specific form, involving the dominance of individual subjects over objects coupled with the right to exclude. However, that this does not exist in the same form everywhere does not mean that property does not exist in the more general sense of a system of rights and responsibilities connecting people with each other and with land and resources. These are not necessarily systems giving primacy to the individual (normally human) subject or owner and their power to control and exclude (Verran, 1998). My objective, however, is not to conciliate between different systems for connecting or separating the human to the non-human. My objective is rather to consider how, within the possibilities offered by Eurocentric thought, there is space for the decolonization of property as practice and idea and to open it to some of the imaginative possibilities offered by First Nations philosophies: the angles discussed below are modest in many respects but nonetheless a beginning.

Performative law and property

As I explained above, the colonial taking or appropriation of the land, coupled with a philosophical rationale based entirely upon a colonial perspective, and having endured by force over a lengthy period of time, transforms de facto colonial possession into de jure property replacing (within its own parameters) the prior title of Indigenous peoples. That colonial facts on the ground can become so easily normalized and legalized, especially when accompanied by a rationale that excuses appropriation, might appear to be extremely bad news for progressive reform: at its most basic, it means that power can always eventually secure right on its side. Might becomes right. However, it also provides some hope for change, because new facts, and new performances, can lead to new norms.

Aligned with the understanding of law and property as reiterated and normalized fact, is the idea that it is performative. Nicholas Blomley has argued that, rather than having some essential or ideal form or even elements, property is only emergent from material practices and patterned usages of located human and nonhuman actors. Property performances produce both the subjects and objects of property and the normative (including legal) contexts in which property emerges. According to Blomley, property is produced in spatiotemporal locations – its forms may be abstracted and reproduced but the reality of property is an effect of these performances (legal, social, etc.) rather than the other way around:

We emerge as subjects through forms of reiterated performance in ways that can be both disciplining yet potentially creative. As such, performances of property … are both citational, referencing numerous other performances, and reiterative, entailing sustained forms of re-performance, Property claims are continuously remade and re-enacted, and, as such, open to surprise and complexity, yet also capable of fixity and sedimentation. (Blomley, 2013, p. 25)

In other words, repeated actions in a social context create property (and, by extension any socio-legal artefact). At any given time, the performance will only be comprehensible if it references the past in a way that is understood by a community. Action or performance cannot take place in a vacuum. This idea, with obvious synergies with Actor-Network Theory and new materialisms, provides a framework in which all material things, including human beings as such, are understood to be produced by reiterated actions. As Blomley says ‘[p]erformativity does not suppose a divide between human agents that arrange and assemble, and things that have been arranged’ (Blomley, 2013, p. 39). The performance of property creates the subjects and objects of property as subjects and objects, and invests them with meaning as rights-bearers, stewards, agents, and networked matterialities (Davies, 2016).

There are many ways in which different performances of property can give rise to different property normalities that might, ultimately, be recognized in formal law. To take just one example, the phrase ‘always was, always will be Aboriginal land’ disrupts the narrative in which an act of state severed Aboriginal connection to land and replaced it with a grid of abstract objectified parcels of land. This phrase, or local variations of it, has long been used by Aboriginal activists in Australia to emphasize the enduring nature of Aboriginal sovereignty and ownership. More recently, some version of it has been incorporated into the recognition statements made by non-Indigenous speakers at public events. In some respects, the statement is symbolic, a reminder of colonial dispossession, of the character of the land, and of the enduring connection of Aboriginal people to it. It is, however, also arguably just one of many micro-actions that aggregate over time and could help to generate a different understanding of property: the statement is, after all, even in its barest form, already an alternative practice or performance of being on land.

A stolen gift

Movement of property away from its colonial emphases can also be promoted by inflecting it with different ethical language, one that emphasizes obligation and mutuality rather than rights and control. As explained above, property is often taken as a given in legal and political theory, presupposed and assumed in a particular fundamental form. Once held, the ways in which an owner uses, consumes, or neglects their property is normally not regulated. Having given the right, law is traditionally neutral as to how it is exercised. But in keeping with many property theorists today, I would say that private property is not a given that can be taken for granted, but is rather in some respects a gift in the sense that it is the product of an agreement by a political community to construe and distribute certain resources.⁶ Property is a gift from the collectivity, via the medium of law, to the individual. This is not to say that the collectivity previously owned anything that they then gave away, but rather that there is collective assent to and widespread social performance of property: it is this politico-legal-performative substratum that is the basis of what we think of as our own. Were it not for the political community, we would not ‘own’ anything. From the position of the proprietor, our property is therefore given to us and, therefore, carries ethical obligations. It is customary for theorists to emphasize the obligations that flow from property (Singer, 2000; Underkuffler, 1990) but the term ‘gift’ is perhaps unusual. I have adopted it essentially to emphasize that property is entirely reliant on the socio-legal order and that every right that we (think we) hold is given to us by that socio-legal system. Owning is entirely produced by law – it is given by law and does not precede it.

We know from Marcel Mauss to be sceptical of the idea of a pure gift (Mauss, 2002): gifts often bring reciprocal obligations, and rightly so. The gift of property from society to an individual is extravagant, and ought to be reciprocated proportionately by those who benefit from it. This is relatively clear in progressive property thinking. But one of the many problems with the capitalist West is that private property is not widely understood as a gift from the larger community, and therefore there is little comprehension of the interlinking of owning and owing (Singer, 2000; Underkuffler, 1990). Another well-understood problem is that the so-called externalities created by the recognition of private ownership – such as environmental destruction – are unrecognized and unaccounted for by virtue of the aggregation of property as a right belonging to the individual self. The more we own in this disconnected thinking, the more value we have as a person.

Even more problematically in colonial contexts is that the gift of property, the gift those benefiting from European colonialism have given to ourselves, is based on a theft from original owners. We cannot claim that we are bona fide or good faith recipients of the gift of property. There can be no ignorance in modern Australia, of the facts of dispossession, just as there can be no ignorance of the wealth amassed by Europe via colonialism across the world. There are only degrees of denial. Therefore, we need to come to terms with the idea that the property produced in colonization is also owed (back) to Aboriginal people (Giannacopoulos, 2017). This obligation to those dispossessed of their title (including their livelihood, location, and culture) is in addition to responsibilities to the community and social context that arise from the institutional form of property and to the ‘natural’ world that continues to produce resources that we rely upon.

Mutuality and place

Property can, therefore, be understood as something produced by social action and as invested with ethical obligations in addition to rights. Rethinking the justifications for property might provide additional resources for a more constructive conceptualization. There are many forms of justification, but in this context, it is especially interesting to reconsider the labour justification, already outlined above, that originated in Locke’s discussion of property in his Second Treatise (1988). This justification for property has evolved since Locke first argued it, and continues to be extremely resonant in colonial contexts.

In finding property in self-ownership and labour, Locke’s reasoning takes into account intentional human contributions to the production of things. The emphasis is on constructive labour that enforces human will on natural resources, shaping them to entirely human ends. The earth, the land, and everything on or in it, are regarded as entirely passive in this reasoning: land is ‘unimproved’ or ‘under-utilized’ and therefore open for exploitation and extraction. Labour is unidirectional – the action of persons on things and places. This thinking obscures the sustainable and mutualistic practices of Indigenous societies (Pascoe, 2014; Roberts, Norman, Minhinnick, Wihongi, & Kirkwood, 1995; Bird Rose, 1996, pp. 17–18; 62ff) as well as the role of the earth itself. The evolution of the seeds, the provision of nutrition for plants, the work of the pollinators, the emergence of the landscape are all unrecognized in this narrative.⁷ It feels inadequate to speak of the earth’s work in these contexts as ‘labour’ but there can be no denying that the active role in production belongs to nonhuman as much as human forces.

Rethinking the labour justification to take account of these continuities in biophysical productiveness brings a range of normative consequences. Instead of free human beings having the power of unfettered control over everything they own, there is a strong imperative towards the value of care and norms of stewardship or custodianship. Moreover, thinking of labour in terms of human-nonhuman co-production aligns with an emerging view of property as place-based, ‘a connection which acknowledges both place agency and the agency of people in place’ (Keenan, 2015; Bartel & Graham, 2016, p. 278; Graham, in press). Understanding real property as emergent from particular places and their distinctive social-ecological characteristics, means a fundamental departure from the notion of property as abstract and detached from particular places.

Conclusion

As already indicated, the fundamental parameters of property as understood in the Anglosphere are essentially fused with the idea of the individual person. The colonial form of property is based on a division between subject and object and the imaginary of a separated self in which a world understood as external can be appropriated by a single person and rendered unavailable to others. Such an understanding of property is made possible by erasing the facts of colonial acquisition and dispossession, by reducing the person to an unconnected unit, and by foreclosing what posthumanist theorists refer to as the vitality and agency of nonhuman things.

It is only really possible to see the strangeness of the division between human and nonhuman and other associated dualisms when we try to step outside and look at them from an altogether different perspective. For those of us raised entirely within a Eurocentric cultural and educational setting this is a necessary endeavour, even if we cannot manage to completely remove ourselves from what Kirsten Anker calls, following Max Weber, our ‘disenchanted’ mindset, which ‘divides mind from matter, human from nonhuman, culture from nature’ (Anker, 2017, p. 193). Property as we know it is wholly a construction of law in an extended sense: it rests upon a cultural imaginary coupled with social practices and performances that are consolidated into legal institutions and forms. This imaginary, however, rests on tropes of natural beings and their natural freedoms, consolidated in the figure of the liberal individual – a highly artificial but totally naturalized figment of the capitalist imagination. Instead of going along with a character we know to be false and accepting our co-option into colonial history, it is time to consider how the truths of history and of interconnection with the nonhuman world might change our entrenched ideas about proprietorship. It may be possible for property to be justified in an entangled world, but it will not be the property that has been taken for granted for so long.

Acknowledgement

The views expressed herein are those of the author and are not necessarily those of the Australian Government or the Australian Research Council. I would like to thank Lee Godden and Nicole Graham for many discussions that have informed the thinking contained in this article. I would also like to thank the referees for some very helpful comments and suggestions.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Funding

This research was funded by the Australian Government through the Australian Research Council’s Discovery Projects funding scheme (DP190101373).

Notes on contributors

Margaret Davies

Margaret Davies is Matthew Flinders Distinguished Professor of Law at Flinders University. She completed her DPhil at the University of Sussex in 1992 on critical theory, and subsequently became a founding staff member at Flinders Law School. Margaret is the author of five books and numerous articles and chapters about the theory of law and property. She is a Fellow of the Academy of Social Sciences in Australia and a Fellow of the Australian Academy of Law.

Notes

1 My emphasis in this article is on the philosophy and law of the Anglosphere. Regarding both property and colonialism, the intellectual legal heritage of all Western European nations are somewhat interwoven, though there are also significant differences between civil and common law countries in both their conceptualisation of property and their colonial practices. However, liberalism and the insistence that property is a fundamental right are very pronounced in the predominantly common law traditions of the United States, Australia, Canada, New Zealand and Britain, and my focus is on the discourses that have emanated from these sources, with a particular focus on Australia.

2 Mabo v Queensland (1992) 175 CLR 1

3 Using the word ‘theft’ in relation to land is not technically correct in a legal sense since the concept of theft only applies to movable goods. It nonetheless conveys the correct notion, that Aboriginal people had prior rights to the land and that these were removed in the process of colonization.

4 Political theorist Robert Nichols (2018) has argued that the concept of dispossession rests upon a conceptual structure in which the notion of theft or dispossession retrospectively constructs the pre-theft or pre-dispossessed state (i.e. pre-colonialism) as one where indigenous peoples actually had property or ownership of the land. There are some fascinating nuances in Nichols’ argument that deserve a more lengthy discussion than I can offer here. On the one hand, and leaving aside the issue of the extent to which at the time of colonization Indigenous peoples were regarded as having any proprietary rights (which as he mentions varied from place to place, cf Ruru 2015), from a narrow legal perspective the argument seems to conflate possession (a fact) with property (legal rights). Within the liberal ontology in which person and land are separate, there is no difficulty (and no retrospectivity) in saying that Indigenous peoples had possession of land and were dispossessed by the colonial imposition of European forms of property (whether or not the possession was recognized as such at the time). Dispossession does not rely on there being a recognizable form of property in existence – it only relies on there having been factual possession. In addition, possession while not the same as property, is nonetheless protected by property law and (as I will outline later) it can turn into law over time. However, looked at from the non-colonial and non-legal perspective, perhaps a conflation of possession with property is defensible: both concepts, after all, rely on there being a differentiation between the possessor/proprietor and the possessed/object of property, or between person/community and land. Neither concept captures the connection and inter-relatedness between human and nonhuman that are at the centre of many Indigenous cosmologies. As Nichols says ‘colonization entails the large-scale transfer of land that simultaneously recodes the object of exchange in question such that it appears retrospectively to be a form of theft in the ordinary sense. It is thus not (only) about the transfer of property but the transformation into property.’ (2018, p. 14, emphasis in original)

5 New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337; Mabo v Queensland (1992) 175 CLR 1.

6 Carol Rose speaks of the environment as a ‘given’ and as a ‘gift’ using somewhat different inflections than those I have used in relation to property (Rose, 1994).

7 Brad Sherman has argued that in the law of intellectual property, place and environmental conditions are part of the descriptive foundation of plant patents. He argues that plant inventions are ‘informed materials’ or ‘objects that are constituted in relation to the informational and material environments in which they are generated’ (Sherman, 2008, p. 565).