Mohammed Subhan Hussain
They acknowledge no right for you, and they do not credit you with a memory.
Law is an ideologically-driven social construct and not a watertight entity capturing the entirety of life. As such, it is rooted in certain man-made confines. As man is open to interpret the law, there are three main categories by which this occurs: philosophically, legally and economically. This paper will explore these three categories as they apply to the social construct of property. The paper will place an emphasis on understanding property through these elements in favor of dispossessed property as the research conducted revealed a steady trend of refugees, or other dispossessed people searching for legal answers to their loss of property. It behooves the paper to address this growing population in the world, as current research is riff with examples, and ignoring such a topic when it is so prevalent would be ill advised. The paper explores the intrinsical relationship of these three elements (philosophy, law, and economics) within the confines of property mainly through use of governing bodies, and past law cases that speak to their specific design within a colonized structure of law. Therefore, the presence of racism, and the hierarchy therein are applied, insofar as they are relevant to the paper’s argument.
Property is a philosophical construct insofar as it exemplifies man’s ability to influence. That is to say that laws are constructed based on an aggregate acceptance of a fundamental truth according to culture. Laws are designed through a need for reason as manifested through human error; “Possession is, after all, fundamentally a juridical concept, one that took hold of modern political philosophy and economics in various ways”. The philosophical construct of property ownership is divulged through the process of recognition. That is, it takes a measure of absolutism to argue for dispossessed lands in the face of a system that seems to be racially subjective (e.g. terra nullius). The philosophical argument herein suggests that in order for a person (dispossessed) to take control of their property, they must be recognized through cultural practices. This argument persists to thoroughly de-legitimize such ownership laws to indigenous or dispossessed peoples through an application of ontology and property as it relates to the rise of “finance capitalism” that make defining the difference between tangible and intangible property all that much more clandestine. The shift in this dynamic and through legal interpretation, rests mainly with the new and varying ways in which property is used (e.g. as land, resources, art, habitat, sacred ground, etc.). In Canada, aboriginal rights to land must pass a three-tier criteria that includes establishing the land as occupied prior to sovereignty, have remained as occupied pre and post-sovereignty, and that the indigenous peoples were the sole proprietors of said property. Thus, the sole definition of property is beget through exclusive possession (as defined through Anglo-European ownership laws). It can therefore be seen that there is an imposition of an Anglo-Saxon understanding of law in relation to ownership that usurps indigenous law, in this context of aboriginal title. This argument lends itself to be further, and more succinctly defined as market economy vs. cultural right. Therefore, it may be sufficiently argued, that property lends itself to a dialectical understanding of law, as it is constructed through cultural applications and perspective.
In Israeli politics, the law adheres to divine right; something that holds ground for both philosophical as well as a religious construct, which reflects the “dialectic of recognition as a (or the) means for the individual to enact his desires for new, inventive self-creation, always in relation to others”. This recognition has been cited by Levi-Straus as defined as the savage mind vs. Western scientific concepts, which in essence is colonization. Thus, the recognition of rights favors the ideologies of Western politics, thereby eliminating the savage minds’ hold on their own property simply through enforcing a code of laws that even though go unrecognized by indigenous peoples, are based on legal foundations that own judicial negotiations and settler colonialism. This may be further explored through Malabou’s structuralism and colonial critique.
Law is a symbol, as seen through the structuralist’s lens. In relation to property as a philosophical construct it may be further analyzed through Jakobson’s “disability of all finite thought”. This adheres to the plasticity definition presented by Bhandar, in that law becomes an agent of leadership that in turn has been defined as a symbolic content. Therefore, law is created to bridge the void between the biological and the symbolic. Suffice it to say that biological interpretation of the law lends itself to philosophical construction, insofar as the law is dialectical (here a focus on colonial vs. indigenous is relevant). In essence, Levi-Straus, Malabou and Jakobson are stating that the law is dependent on human constructs or interpretation and this construct favors subjective or cultural viewpoints, and thereby can be interpreted different, accordingly.
Bhandar argues that the struggle for recognition is in vain. This is particularly true when viewing property through the lens of philosophy, as everything is up for interpretation. This argument, however, may begin its nascent journey during the 18th century, when humans were finding their subjective views in accordance to the laws that governed them (both on a temporal and spatial logical dialectic). The author goes on to argue that the non-disappearance of subjective colonial laws indicates a true struggle for recognition (identity within the constraints of the law). The dialectic of recognition “persists because it also has the capacity to remain open to what is to come; it has the potential for explosive ruptures and the emergence of new (plastic) political subjectivities. There is also the matter of what escapes the moment of recognition; that which exceeds the particular claim that is being made”.
The legal constructs of property reside with politics. For instance, the argument for a person being recognized by a country falls into this category in this way, “…the figure of the non-European as a mere projection of European non-Reason, and constructed and regulated this figure as a being who is somewhat less than fully human, political struggles for recognition as full and equal subjects before the law…” This most notably may be represented through Étienne Balibar’s work which cites Lockean notions (in relation to self possession). This self possession is “constituted through acts of appropriation that take place in the interior realm of knowledge and the exterior realm of the world”. It is the world that defines property constructs. As such, in Lockean terms, women, the Savage, and children all lacked the capacity for self-possession and were therefore not granted property rights “in a manner that would satisfy the conceptual criteria of the proper subject of law”. Suffice it to say that law is an inherited concept that is appropriated from common law practices (that in turn is riff with prejudices and in some instances outright racist, and misogynistic).
These common laws regulate property rights. In the case of Canadian Indians, property rights followed blood genealogy and then once racial identity was secured, depending on the person’s status as an Indian, their lands were appropriated by the government. Or, in the case of First Nations, women who were either not married to an Indian or who belonged with a certain tribe that was not recognized as Indian, held no rights to property thereby categorizing a law into a patrilineal or patriarchal category, or both. This resulted in, “First Nation women falling outside the bounds of propriety in relation to the gendered criteria of citizenship (and constituted property) on the one hand, and, on the other, cast as immoral, hypersexual, or depraved in relation to white women”. Herein we find that status is a form of property, as Cherly Harris has stated in her work, “Whiteness as Property”.
Property is seen as a legal construct through Harris’ work, but also through Plessy v Ferguson and the ever-popular case of Brown v The Board of Education. In Harris’ work, one may find the transmutation of skin color (white) to its status as an elite symbol of privilege. She explored ways in which property was upheld through the separate but equal. Thus, whiteness, “becomes a more abstract, intangible form of property that affords its “owners” economic benefits as well as social and cultural forms of capital. “Identities” such as whiteness are formed through relations of ownership and eventually operate within a racial economic system which, even in the post-slavery era, continues to be based on the twin pillars of a heavily radicalized and gendered labor market on the one hand, and a political structure based on a legal form rooted in private property, on the other”. In this deliberation is found a changing form of property; it has become reassigned from the scientific discourse of previous centuries and has instead evolved into a biological concept that equates skin color to property akin to currency. All of this is designed through legal concepts. Bhandar states that skin color becomes a form of currency when constructed this way.
This is further exemplified through the lack of decolonization, that disallows – in its current state – for plasticity and ways we may find new forms of legal relations. A good example of this negation, and progress in the realm of legality in property rights for indigenous people can be found in the Supreme Court ruling in R. v Marshall; R. v Bernard. Both cases represented the Mi’kmaq tribe, wherein the first case they had been accused of illegally cutting timber, and in the second case, accused of being in possession of logs from said lands. While the appellate courts overturned the Supreme Court ruled against them, and restored their convictions. Herein we see that property is a legal construct, as opposed to a philosophical one. The Mi’kmaq argued that they had a right to cut timber on lands that were originally part of their treaty, or on the right of their aboriginal title, but both were overturned by the Supreme Court. This sanctioned the fact that property is a legal construct; “In relation to claims for aboriginal title, the priority of the Crown is to preserve private property relations based on a unitary and underlying Crown sovereignty, and thus other ways of owning and using land…fall out of the bounds of intelligibility”. Even though aboriginal rights seem to be dated in a past based on sovereignty rights, something that seems inapplicable to today, it still maintains its hold on interpreting property law through legal means.
The legal sphere relies heavily on recognizing rights, based purely on the definition of the “acknowledgement of existence”. As certain states do not recognize indigenous people as citizens, such recognition becomes nonreciprocal (legality in this fashion becomes a matter of tradition/tribal vs. modern/societal). Bhandar argues this point, the space for a mutual recognition of authentic or genuine indigenous ways of being is foreclosed. Claims for land are translated into the language of property, jurisdiction is expressed in the language of sovereignty, and so forth”.  Therefore, it takes self-recognition in order to disregard, and disown “colonial oppression”. Thus, the question then arises as to the philosophy of recognition that in turn breeds a certain level of violence; “the violent forms of state lethality witnessed in the treatment of indigenous populations”.
Property can be defined as an economic construct and may best be explained through Fanon’s words, in relation to its colonial context, as “inequality and the immense difference of ways of life never come to mask the human realities. When you examine at close quarters the colonial context, it is evident that what parcels out the world is to begin with the fact of belonging to or not belonging to a given race, a given species. In the colonies the economic substructure is also a superstructure. The cause is the consequence; you are rich”. While this relates to Harris’ whiteness as commodity conception, it is defined very differently within this construct. It may also be exemplified through R. v Bernard, as the argument was finalized through trading. The court overturned the appellate decision based on their reasoning that logging was, “not an activity that has ‘logically evolved’ from a ‘traditional activity’ of the Mi’kmaq”. Thus the decision was based on an evolution of economics. The counterargument that the Mi’kmaq tribe offered was that during the time period in which the treaty was signed, the tribe was using timber from their lands. The argument was dichotomized between modern and traditional, with a focus on economics (as the Mi’kmaq at the time traded for canoes and toboggans). As cutting timber was not part of trade in the 18th century, the Court ruled that the treaty did not protect this activity.
In this example we find a delineation of economics law in relation to property. This is what Bhandar is referencing when she states that current law is “mired in colonial retaliations of domination”. This may be further examined through the period between mid 19th and early 20th centuries with the Algonquin tribes tried to maintain homes off reservation, while simultaneously maintaining their hunting practices. Bonita Lawrence states, “how the economic and social pressures of colonial settlement forced many Algonquin onto the reserve and into a constrained regime of status as defined by the law”.
Property became more of an economic law with the Indian Act of 1886, wherein it is stated that if an Indian wanted to be given inherited property, franchise, and the ability to participate as a full citizen they had to give up their birthright as an Indian. This gave Indian men and women the ability to disenfranchise at the age of 21, upon satisfying certain requirements. Upon giving up their birthright they would “be granted a “location ticket as a probationary Indian for the land occupied by him or her” or such proportion as the Superintendent General deemed fair and proper”. Despite the fact that the Indians could now have land, it did not entitle them to lease the land, sell it, or alienate it without the Governor’s approval. This was mandated through the generations and extended to all, with exception of the enfranchised woman whose rights for annuities, moneys, rents, etc. It was a policy that was spurred by First Nations. The intentions of the act was clear; it was devised in order to “eliminate indigenous sovereignty, radically diminish First Nations’ land base, and control nearly every aspect of aboriginal lives”.
Property seems to fall into a philosophical-legal-economic role. As it adheres to the constructs of law (a theory that seeks to govern, but may be subjectively interpreted), it, too, may be open to interpretation. Thus law is an exercise to keep order in a specific system, a conceptual and a physical space, but never a completely sealed entity. This paper has shown no clear-cut rationalization for property to be a more one elemental focus than the other. Even researchers suggest that property law cannot be cached into one pigeonhole, without negating the bolsters that the other elements offer. This is exemplified with Bhandar and Goldberg-Hiller, “the law is enfolded within the social norms and economic relations that structure recognition in manifold ways: laws governing desire, repressive laws, and within the colonial context, a law of subjection that is based on a racial system of property appropriation”. Thus, law seems to be left up to the governing body, albeit, influenced through these particular lenses.
Mohammed Subhan Hussain is a third year undergraduate in Law at SOAS, University of London. He has an interest in feminism and wider issues pertaining to human rights. He has previously published an article entitled, ‘History, Law and Vernacular Knowledge: The Threat to Women’s Collective Representation Under the Guise of Androgyny in Pakistan’ (2016) 7(2) in The King’s Student Law Review. He would like to acknowledge Dr. Vanja Hamzic and Paul Kohler for their encouragement, support and words of wisdom throughout the year. This essay is dedicated to Professor Werner Menski. Though Emeritus now, Professor Werner Menski and his work instilled in the author the spirit of questioning, and acknowledgment is due for that. E-mail contact remains firstname.lastname@example.org.
Painting 1 was specifically painted by Italian artist Katerina JaTak for the purposes of this essay. The static position the young indigenous female is in the painting highlights the inability to break away from the shackles of political restraint. The hands coveting the body are depictive of the prevalent positivist political landscape which prevents indigenous people to gain the acknowledgement they deserve.
Painting 2 was specifically painted by Italian artist Katerina JaTak for the purposes of this essay. the static position the young women is in the painting highlights the inability to break away from the restraint of hegemonic masculinity.
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*Mohammed Subhan Hussain is a second year undergraduate in Law at SOAS, University of London. He has previously published an article entitled, ‘History, Law and Vernacular Knowledge: The Threat to Women’s Collective Representation Under the Guise of Androgyny in Pakistan’ (2016) 7(2) in The King’s Student Law Review. He would like to acknowledge Dr Brenna Bhandar for her guidance, encouragement and teaching throughout the academic year. This paper is dedicated to Mr. Paul Kohler. Thank you for your kindness, support and words of wisdom. E-mail contact remains email@example.com. SSRN author page is at http://ssrn.com/author=2546425.
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 Brenna Bhandar & Davina Bhandar, Cultures of Dispossession: Critical Reflections on Rights, Status and Identities (Darkmatter Journal 2016 ) 3.
 Brenna Bhandar, Plasticity and Post-Colonial Recognition: ‘Owning, Knowing and Being’ (Law Critique 2011) 234.
 Ibid, 236.
 Ibid, 236.
 Brenna Bhandar, Plasticity and Post-Colonial Recognition: ‘Owning, Knowing and Being’ (Law Critique 2011) 238.
 Brenna Bhandar and Jonathan Goldberg-Hiller, Plastic Materialities: Politics, Legality, and Metamorphosis in the Work of Catherine Malabou (Duke University Press 2015) 209.
 Brenna Bhandar, Plasticity and Post-Colonial Recognition: ‘Owning, Knowing and Being’ (Law Critique 2011) 242.
 Brenna Bhandar, Status as Property: Identity, Land and the Dispossessed of First Nations Women in Canada (Reflections on Dispossession: Critical Feminisms 2016) 2.
 Brenna Bhandar, Status as Property: Identity, Land and the Dispossessed of First Nations Women in Canada (Reflections on Dispossession: Critical Feminisms 2016) 4.
 Cheryl I. Harris, ‘Whiteness as property’ (1993) 106(8) Harvard Law Review 1707.
 Ibid, 13.
 Brenna Bhandar, Plasticity and Post-Colonial Recognition: ‘Owning, Knowing and Being’ (Law Critique 2011) 214.
 R v Marshall; R v Bernard 2005 SCC 43.
 Ibid, 217.
 Brenna Bhandar, Plasticity and Post-Colonial Recognition: ‘Owning, Knowing and Being’ (Law Critique 2011) 228.
 Ibid, 238.
 Brenna Bhandar, Plasticity and Post-Colonial Recognition: ‘Owning, Knowing and Being’ (Law Critique 2011) 228.
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 Brenna Bhandar, Plasticity and Post-Colonial Recognition: ‘Owning, Knowing and Being’ (Law Critique 2011) 215.
 Brenna Bhandar, Plasticity and Post-Colonial Recognition: ‘Owning, Knowing and Being’ (Law Critique 2011) 239.
 Brenna Bhandar, Status as Property: Identity, Land and the Dispossessed of First Nations Women in Canada (Reflections on Dispossession: Critical Feminisms 2016) 5.
 Ibid, 5.
 Brenna Bhandar and Jonathan Goldberg-Hiller (eds), Plastic Materialities: Politics, legality, and metamorphosis in the work of Catherine Malabou (Duke University Press 2015) 218.