I use the term “racial regimes of ownership” to capture the complex way in which legal subjectivities — and we could go beyond that to say modern concepts of the human — are fundamentally tied to private property ownership in the modern era. So “racial regimes of ownership” is a concept that I develop in the book to explore how rationales for private property ownership emerge in conjunction with a racial concept of the human. We can’t understand modern conceptualizations of race and racial difference without thinking about the legal form of property and vice versa.

The control and possession of land is central to colonial endeavors, primarily because of the main objective of colonial rule, which is resource extraction. In order to extract resources, as much and as efficiently as colonial authorities aimed to do, control over land is basic. We see this right in the genesis of different kinds of colonial enterprises. We can think about this from the late fifteenth century with Spanish and Portuguese colonialism, and then through all of the different forms of European colonial rule, that asserting sovereign jurisdiction over foreign territories is really the beginning point of colonialism.

Now, that right from the start is actually not necessarily a state function, because we know that many colonial endeavors begin with chartered companies given monopolies over particular forms of trade. If we look at British Columbia, as an example, the Hudson’s Bay Company was given a monopoly charter for a very long time before colonization became a formal state project by the British government. So that, if we look at the charter that the Hudson’s Bay Company was given, it’s not just a monopoly charter over trade, but it is given rights by the colonial state to control a vast territory.

It depends where you’re located. If we think about a country like Canada, like much of the world, resource extraction is still happening. We only need to think about the climate crisis and fossil fuel extraction. If we think about those contemporary forms of resource extraction, maintaining control over indigenous territory remains a key objective of the state-capital nexus. So this is both an old story and still present.

That’s a great question. I think one of the most useful ways of thinking about that relationship is to consider how the imposition of a colonial legal system required a great deal of violence both at the hands of individual settlers and gunboat diplomacy, or that kind of state-driven warfare. In fact, when we look at property law, contract law, and these legal forms that were absolutely central to imposing a system of private property ownership within settler colonies, they also required forms of violence that were at face value in violation of settler law. The relationship between legality and illegality (or what is on the face of it illegal) — they are constitutively bound to one another.

I’ve been looking at this more recently with an interdisciplinary group of scholars around the doctrine of preemption. The doctrine of preemption is a very good example of this dynamic between property law and individual settler violence. Preemption is a doctrine that essentially allows settlers to stake out un-surveyed land that has not been parceled up and bought or sold by other settlers. Upon registering a preemption, settlers would have to fulfill certain requirements such as cultivating that land or building a house or some kind of structure on that land, but their focus was really on cultivation. Settlers from 1859–1860 onward in the province of British Columbia could preempt up to 160 acres individually. That eventually increased to 320 acres per individual. So settlers are literally driving stakes in the ground of un-surveyed land, doing a sketch of the un-surveyed land, and registering preemptions. If they could show after two years that they had cultivated the land, they would then get a certificate of improvement. That would be the basis for obtaining “fee simple ownership,” meaning private property rights over that land.

What we see in the historical record is that settlers would often preempt land that was clearly a part of an indigenous settlement, lands that had been cultivated by First Nations, and village sites. The preemption legislation stated explicitly that settlers were not supposed to preempt “Indian settlements” or lands that were clearly in use by indigenous communities. What we see in the historical record is a lot of settler violence in order to preempt land, and that violence treated with impunity by the state. It’s an example of how this burgeoning colonial state required individual settlers to preempt land so that the state could solidify its jurisdictional control over this vast area where the state did not have the “manpower” to maintain control over this vast territory.

The state needed individual settlers to do that. Individual settlers violated the terms of settler law, used a great deal of violence against indigenous peoples, and were treated with impunity by the state. I think the story about law and colonial settlement is actually one of a very intimate relationship between individual settler violence and a colonial state that actually needed settlers to rapaciously take over land in order to shore up its own control over its colonial territory.

Sticking with that question of what difference does it make to understand settler colonialism through a legal lens, I’m not sure there’s a single narrative or origin story of the development of private property. I suppose within certain more orthodox Marxist traditions, you look at the enclosure movement in England and colonial Ireland to understand the emergence of modern forms of private property. The point that I try to develop in the book is that when it comes to modern property law, we can’t really understand it without looking to the colonies or settler colonies as a kind of legal laboratory.

One thing I look at in the book is the idea of title by registration within the land reform movement in England. That’s another good example of how land law reformers in England over a long period of time tried to change property law to reflect a more commoditized vision of land. They were trying to reform laws so that land could be treated more as a commodity, be exchanged and alienated more easily. They attempted to impose a system of title by registration throughout England. That really failed because they were dealing with a feudal aristocracy who did not want to make their lands more easily alienable because of the fear of losing those lands.

Where are these legal doctrines developed? In many ways they are developed in the colonies, where the colonial state treated indigenous populations as either less than human or as incapable of owning property privately. In some instances in Canada, owning property privately was made contingent on giving up one’s status as an indigenous person, legally speaking. In those contexts, it became much easier for a colonial government to impose different and more novel forms of landholding. Even the doctrine of preemption that I just spoke about a few moments ago is actually not something that’s inherited from England. It’s something that has developed in the United States.

Robert Nichols, in his marvelous book Theft Is Property!, maps some of that history of how preemption comes to be developed in the United States, in order to deal with the problem of squatting. In the United States, preemption enabled squatters to retroactively make their illegal occupation of land legal. The way I described it in the Canadian context is somewhat different. The state didn’t have an excess of squatters squatting land, but it had a need to attract settlers to settle a vast territory. The burgeoning colonial state didn’t really have the power to do it on its own.

I think so. There’s a few different elements of that. One is that the state was dealing with a different demographic and different political challenges than legislators were dealing with back in the UK.

In the colonies, the state was needing to develop and innovate laws and policies at speed. Governor James Douglas in British Columbia had a very real problem when it came to figuring out how to financially sustain this burgeoning colony. The land policies he adopted were really in response to urgent problems. Much of the innovation, the creation of novel and partially novel legal doctrines, was circulating through different colonial sites. With the doctrine of preemption, for instance, Douglas borrowed that from Oregon, where it had been used quite pervasively. The personnel were also circulating through these colonial networks: different colonial administrators, colonial surveyors who may have had experience in the Caribbean, South Asia, Africa, and then they landed in another part of the British Empire. They brought with them this knowledge and these practices.

I think that there was a lot more fluidity and experimentation that was happening in the colonial world. It goes against the idea that colonialism involves a one-way export of laws and policies from the UK out to the colonies. I think that is the way colonialism has been understood for a long time.

That’s right. It took much longer for title by registration to be implemented widely in England. In England and Wales, it took until around 1925 or just before that land legislation reform, whereas it was introduced in the colonies in the 1860s.

I’m just focused on property law, but if we look at Nasser Hussein’s work, for instance, the wonderful book he wrote The Jurisprudence of Emergency: Colonialism and the Rule of Law, that’s an examination of how the law of emergency takes on certain valences in the colonial setting. It has a lot of explanatory value for understanding how emergency laws are put into effect in our contemporary moment to control racialized populations in different European states. One could look at contract law and criminal law. The scope for this kind of analysis is fairly unlimited.

That’s a massive question, because it brings up the theme of agrarian capitalism and the development of agrarian capitalism over centuries. It’s fair to say that there was differential development of agrarian capitalism in different European states. We see agrarian capitalism and the rationales underlying different forms of landholding developing quite differently in England versus France versus Germany that were specific to the preexisting histories of feudal land holding in those places.

Going to the specific issue of use and improvement, if we think about colonial Ireland, I look at the work of William Petty, one of the early thinkers of a concept of value that encapsulates the value of human individuals defined solely in terms of their labor power, in conjunction with a certain kind of land use — cultivation — that would produce yields that will support a growing capitalist market economy, food production, and agriculture.

Petty is an interesting figure because in the seventeenth century, we see the emergence of a concept of racial value in relation to the Irish, which is defined through their capacities for certain kinds of labor in agricultural production.

He is recognized as a polymath by historians and political economists. He was a surgeon sent to Ireland  to survey the land in order to pay off debts to the privateers, the adventurers, and the military personnel who had, at that point, subdued Ireland through colonial conquest. Even the titles of his works, The Political Anatomy of Ireland and The Political Arithmetic, took on a scientific approach to measuring human value. That kind of political economy that fuses together a racial concept of value with political economy is quite important in thinking about how colonial treatment of indigenous labor, indigenous lives, and indigenous land emerged in other places after that.

On that question of racial value, it’s rendered more bare in Petty’s work. Locke’s work is very different, because in the Two Treatises of Government and other texts, he essentially tried to secularize what was, until that time, a divine or theological justification for ownership. I think of Locke’s work as much more within a political philosophy, jurisprudential vein, whereas William Petty’s thinking is on political anatomy in all of these different ways.

He’s a polymath and a surgeon. His work and thinking about the value of human life is quite distinct from Locke’s more political, philosophical justifications for private ownership. Locke’s are more firmly ensconced within political philosophy and jurisprudence.

In Petty’s work, we see more of a turn toward taxonomy and classification and that sort of natural science that was emerging at that time, which became foundational to racial thinking. In those kinds of scientific texts, optimization and categorization were part of a shift from a more theological understanding of civilizational or racial difference that’s rooted in religious difference. Petty’s work is also located in that crucible, changing from theological, religious justifications for colonization to more scientific or empirically based ideas of racial difference.

That’s a great question. What we see in the work of Petty is that there’s a civilizational project at play, and a lot of his writing on the Irish reflects a concern with how to make the Irish as civilized and as valuable as the English. In the book, I talk about these passages where he contemplates the interbreeding of Irish and English men and women, in the same way that you would breed different plant varieties to strengthen the result. I mean, it’s that conception of civilizational uplift or improvement that is at stake in the British colonization of Ireland. That’s obviously a way of thinking about the differences that we see take place all throughout the colonial world.

Petty’s writings about Jews both mimic and echo long-standing forms of antisemitism. That idea of the Jew as the wandering, nomadic figure who has no attachment to land, which is obviously an antisemitic trope, fits into Petty’s emphasis on human value and productivity being linked to one’s capacity to engage in a certain kind of agricultural labor. He compared the Jew to Irish peasants, whom he saw as capable of being reformed.

But what he found perplexing about the Irish is that some Irish peasants didn’t seem to exhibit the desire for uplift and improvement. He wrote in very racist terms about their mode of living, their mode of subsistence agriculture, their cultural and linguistic practices. We see the figure of the redeemable native versus the nomadic figure. We also see during this period the criminalization of the “vagabond” or “nomad” — the nomadic figure who’s not tied to a fixed, governable, controllable kind of labor attached to a particular estate. We see a kind of prefiguration of the way the figure of the nomad becomes cast in an anthropological frame as a kind of premodern subject.

Let’s start with the second part of the question. I don’t think that one can separate that desire to profit personally from the larger state project of colonization, from the racial ideologies that are informing that person’s everyday practices on the ground. The desire for personal profit is analogous to and bound up with the interests of the colonial-settler state. It is part of the same scene of preemption I was speaking about earlier, where the state is relying on the fact that there are individual immigrant settlers who want to come and amass profit and accumulate capital.

The state needs those kinds of settlers. and those individual settlers need a state that’s going to put into effect the legal, political, and material infrastructure that allows them to. Those two things go hand in hand. That personal greed motive is very important to the state and to who Trutch was and what he did in terms of dramatically reducing the lands that had been set aside as reserves for First Nations.

Many historians and geographers who write about colonial settlement often characterize Trutch as being worse than other colonial administrators, who wanted to recognize what were then referred to as Indian titles. James Douglas, the first governor of the amalgamated colony of Vancouver Island and the mainland, which became the colony of British Columbia, is often looked upon as someone who recognized indigenous land ownership and was a more benevolent figure than Trutch, who was explicitly and violently racist. It’s important to recognize that these positions are just on a spectrum of colonization, at the core of which is racial difference. Whether it took a softer form or this very harsh form under Trutch, the settler-colonial project in British Columbia is one of land theft.

Now, Trutch is quite a despicable figure because he committed fraud when it came to the reduction of reserve land, in the sense that he blatantly ignored the boundaries that had hitherto been drawn around reserved lands. He is seen as a despicable figure, but he’s part and parcel of the colonial project.

Absolutely. This is an insight that emerges with postcolonial theory. I think about some of the work done by subaltern studies scholars like Dipesh Chakrabarty’s Provincializing Europe: Postcolonial Thought and Historical Difference, and Ranajit Guha’s work. Within colonial spaces, the idea that there is some kind of linear teleological development is a myth. We see that very clearly in the realm of property law among the different rationales that I look at, but we could also think of other rationales.

Occupation, possession, and then this more abstract form of ownership through title by registration operate recombinantly in many different contemporary contexts. We see struggles over ownership being waged on all of those fronts at the same time. If we think about the dispossession of Palestinians, throughout historic Palestine, we can see examples where occupation, possession, and then the title deeds are three fronts in the struggle over land dispossession. We can think about the struggles of different First Nations in British Columbia who are trying to defend their lands from catastrophic forms of resource extraction. We think about the Wet’suwet’en First Nation in northern British Columbia, where taking possession of or occupying one’s traditional lands is the primary means of defending that land from corporations who have leasehold interests over that land — land that is nominally within the hands of the crown.

In fact it has been recognized as unceded land, meaning it was actually never legally given up by the Wet’suwet’en. I think this point about the recombinant nature of the way in which property law operates to dispossess is an important way of understanding how it functions.

The idea of the reserve doesn’t originate here. There’s some historical evidence to show that the idea of the tiny areas of reserves, as it developed in British Columbia, is borrowed from South Africa. That idea and practice of creating reserves is essential to the creation of a market in private property. Many First Nations didn’t relate to land as private property, with everything that system of property ownership entails like the possessive individual. So to create a market in private property on indigenous territories required the creation of at least two different economies of land.

One is a market in private property, and the other is the reserve economy in the space of the reserve. Colonial authorities attempted through pieces of legislation like the Indian Act (and other legislation that preceded that) to control all of the kinds of economic activity and cultural practices that are allowed to take place within the bounds of the reserve. Infamously the federal government controlled the movement of indigenous peoples on and off the reserve during certain periods of time, and land on the reserve was not held as individual private property. Reserved land was held in trust for the First Nation.

So these two economies of property are very much bound together and related to one another. It became the way that the colonial state dealt with indigenous displacement.

It’s quite clear that indigenous peoples in British Columbia and in the rest of the country cultivated their land. I think after finishing the book, and moving on to look at preemption in more detail recently, there’s a lot of evidence to show that settlers would either ignore or destroy crops that had been planted by First Nation peoples. The idea that indigenous peoples do not cultivate their land — going back to that Lockean fantasy that America existed as this uncultivated wild — is a racial trope. It’s also a con, because it’s clear when we look at the historical record that settlers would routinely destroy crops of First Nation peoples.

I think that this ideology of improvement is cast in racial terms precisely to dispossess indigenous peoples of their land and to justify it on the basis of this idea of cultivation.

Now, I’m not saying that indigenous communities here cultivated their lands in exactly the same way as settlers may have. The way settlers may have emulated some idea of the homestead, for instance, may have been different. However, what is clear from the historical record is that oftentimes what were recognized by settlers as crops and cultivated land were simply destroyed. What we see is a kind of creation of that Lockean fantasy of the wasteland through a great deal of violence. It’s making land into waste so it can therefore be appropriated.

In some ways, there are two different ways of understanding that relationship. Between wage labor, property ownership, and this proper subject who desires to both own property and has the capacity to alienate one’s labor in the marketplace, let’s say, is obviously the critique of that relationship. That is a core part of Marx’s critique of capitalism. We can understand that relationship as an oppressive disciplining force, core to the constitution of the modern legal subject, the modern human subject even.

We can also see it as a racial construct. The idea that the proper legal subject is one who has the capacity to freely alienate his or her labor means that vast swathes of humanity — who were either enslaved or indentured or simply did not have the capacity to freely alienate their labor — fell outside of it. That became a kind of teleological understanding of development.

And when freedom comes, that very notion of freedom (as explored by Saidiya Hartman, Denise Ferreira da Silva, Fred Moten, and others) is also bound to this racial history of enslavement. We can think about the racial histories of indentureship as well. I think that in addition to the idea of freedom that underlies the idea of one’s capacity to freely alienate labor, there’s also the figure of the proprietorial subject. That is also clearly a racial construct.

This is a really important distinction in various fields of critical work — work that admits that race, racism, and the dispossession of indigenous lands are a part of colonial history. If we take that kind of example, it does not really delve into how racial thinking and how concepts of racial difference are conceptually bound to legal doctrines of property, ownership, and contract. The kind of work I’m interested in doing is trying to crack open the legal doctrines, but also more broadly the juridical, to understand how conceptions of racial difference are constitutively bound to the property law doctrines that emerge in the colonial setting. It’s a very different kind of conceptual work, one which I think is very important, because in the former kind of work, you just really lose sight of the importance of race altogether. It doesn’t really do much for our understanding of how racism operates — or crucially, it’s contemporary manifestations — to just sort of admit by the by that this was racist in some ways.

It’s pretty explicit in the writings of some of the early Zionists, Theodor Herzl and Arthur Ruppin in particular, who I look at, and Chaim Azriel Weizmann, and other sorts of founding fathers of Zionist settlement. They were heavily influenced by models of European colonialism. The models of European colonialism that involved the dispossession of indigenous peoples and the imposition of a different forms of agrarian capitalism were part of what early Zionists foresaw as being central to the Israeli Zionist project.

It’s also clear that the antisemitism that you just described, that I describe in the book, was something that early Zionists were very much attempting to react against. So in this quite perverse way, you have a very understandable reaction to that long history of antisemitism that focuses on the lack of attachment to land informing a project that is modeled on European colonialism, which then also conflates with certain ideas of blood and soil as a basis for membership in what would become the Israeli state.

I think this is where we see the same rationale or the same nationalist drive take quite fragmented legal forms. One of the rationales that is put forward by the Israeli state when it comes to the dispossession of Palestinian landholders is that of security. Security is used as an excuse, within the bounds of Israel and the West Bank. In a Benthamite rationale for private property ownership, security is absolutely key. The expectation that one will be secure in one’s property right is really the key rationalization for private property ownership that Jeremy Bentham gives us. The property logic is quite present there.

At the same time, there’s quite a fragmented legal regime, where, at least from the perspective of lawyers in the West Bank, there’s often been a focus on international law and the law of occupation as a way of trying to resist and argue against land dispossession and population transfer and displacement. Within the bounds of Jerusalem, there’s the land-use planning laws and municipal bylaws and regulations to dispossess Palestinians. Then of course, we have the situation of Sheikh Jarrah, which goes back to the attempts by Israel to reduce what is a situation of dispossession of Palestinians into a real-estate problem.

In the Naqab, in the south of Israel, as I look at in the book, there’s the situation of the Bedouin, which has by some advocates been cast in the framing of aboriginal rights discourse. This fragmentation from a legal point of view is in many ways problematic, because looking at it from a land law or property law perspective, as many Palestinians have done (most notably, recently Suhad Bishara has written a brilliant PhD dissertation on the dispossession of Palestinians through land law), really reveals how that is a unified project. On the face of it, we have different legal regimes, but underlying that, I think there’s quite a unified use of land law and emergency powers to dispossess Palestinians.

Maybe the framework of racial capitalism would be interesting to consider in relation to the brand of Zionism that has become so predominant in Israel today. I think that we’re looking at a state now where fascist parties are represented in the Knesset. There’s a reemergence of a more theologically driven justification for Palestinian dispossession. We are seeing a real resurgence of some of the thinking that’s always been present in political Zionism, that the Jewish people have a relationship to the land that stretches back to biblical times.

One of the things that the Palestinian situation should draw our attention to is that all of these different colonial contexts have a different kind of historical specificity. If we think about Palestine, and we think about the British mandate that precedes the creation of the State of Israel in 1948, it draws our attention toward the Ottoman Empire. It draws our attention to a different history, if we’re just thinking about land, law, and property — it draws our attention to the fact that Palestine is ensconced within a very different political economy than, let’s say, indigenous communities in different parts of Canada in the nineteenth century. There are different kinds of land reform happening within the Ottoman legal arena with the land reforms of 1858 that, of course, are then manipulated, changed, transformed, and drawn upon by the British during the mandate. There is a huge difference — in the prehistory of the settler-colonial formation that is Israel-Palestine — between that context and others.

Now, does that mean that we should not examine how there are legal techniques of domination and legal relations of power used in South Australia, or in Algeria by the French, that are very similar to those used in Palestine? I think it’s really a valuable exercise to really draw out the similarities as a point of political solidarity.

I really liked the concept of the “real estate state” that’s developed by Samuel Stein. You’re absolutely right in your diagnosis. In terms of thinking about how these histories of settler colonialism inform our understanding of the contemporary real estate state, we can see that the inauguration of the economy of private property is all about creating a market in land. We have in this conversation focused a lot on the ideology of improvement and the emphasis on agriculture historically, which also then takes on a kind of metaphysical quality in the context of Israel-Palestine, rather than an economic reality. But I think what we see with the real estate state is obviously a massive shift to a different concept of value: that aspect of ownership that is the capacity for owners to speculate, which is actually a very old story, but maybe that takes on a different life juridically and in terms of what is valuable about ownership.

The fact that you mentioned, which is so depressing, but also very true, is the idea that with the deterioration of any kind of social welfare state, the objective of becoming an owner or homeowner or a rentier becomes the path to security. One way of challenging that is also not a new story. We see it happening really vibrantly in all kinds of urban spaces: the fight against corporate landlords, the fight for rent control, the idea of making ownership less lucrative or less valuable.

When I think about it, conceptually but also practically, I think the answer lies in making private ownership valueless. That’s an abolitionist objective, in a sense. I think about Andreas Malm’s phrase “property will cost us the earth.” In thinking about survivability, and thinking about livability and thinking about things like the climate crisis, trying to make ownership less lucrative and valuable really ought to be at the core of our political thinking and struggle.

A massive example of this is through the pandemic, and the struggle over the proprietary ownership of the patents for the COVID vaccine. If that’s any sign of where we’re headed, then the future looks very bleak. Those struggling for a loosening of the proprietary powers of the patent didn’t really succeed in the way that many of us had hoped. I think the idea of trying to create the conditions where it no longer pays to be an owner is one way of thinking about this problem.