Coding regimes of possession. An essay on land, property, and law

ABSTRACT

Regimes of possession are constituted by rules of property. This includes the asset, rights subjects, and institutions of public authority. They are all coded in specific ways, and they connect to each other. When governments engage with land, they recode the constituent parts of the regime, engaging in property, subject, and even state formation. Yet, in a context of legal and institutional pluralism, many institutions and actors with varying degrees of relative autonomy and legitimacy make up the field of land struggle. All engage in coding of possession. Governments, claim to act within the law when they grant or dispossess citizens of land. Likewise, people aim to legitimate land claims through reference to law in creative ways. Examples show how different repertoires of legalization conspire with efforts to recode different constituent elements of possession into dispossession.

KEYWORDS:

• Coding property
• regime of possession
• law
• possession
• land

The making of rules and social and symbolic

order is a human industry matched only by the

manipulation, circumvention, remaking, replacing,

and unmaking of rules and symbols in which

people seem almost equally engaged.

Sally Falk Moore,

Law as Process (1978)

So, you’re above the law, is that it?

No. I’m just ahead of it!

Jonathan Lethem/Edward Norton

Motherless Brooklyn (1999, 2019)

1. Introduction

Land dispossession has been the fate of many smallholders all over the world. Large-scale acquisition, or enclosures, with government consent, encouragement, or outright participation, have upset and changed societies in countless ways. Some of the most striking examples of dispossession have made way for plantations, mines, ranches, and nature reserves.

Recent decades have brought land to the fore in scholarship on social dynamics and change. To be sure, land was never in danger of slipping beyond the pale of scholarly attention, but the debate on land grabbing or large-scale land investments has been so intense that one could be forgiven for seeing it as a renaissance (Borras & Franco, 2012). Leading academic journals such as Agrarian Change, Antipode, Development and Change, Globalizations, Peasant Studies, Political Ecology, and World Development have all addressed the phenomena of land use, transactions, and conflict. It seems unjust (and impossible) to characterize this literature in simple terms, as it exhibits tremendous variation in contexts, policies, and forms of resistance. Contributors have applied different perspectives of geographical scale and historical scope, and, generally, the scholarly debate has been comprehensive. Foundational sources of inspiration in this scholarship include Marx’s work on primitive accumulation (1867/1978), and E. P. Thompson’s historical analysis of the enclosures in England (1975). Harvey’s renewed reading of accumulation by dispossession (2003) provides us with an analytical language for the crude process of simple imperial robbery (see also Arendt 1951/1973 and Mattei & Nader, 2008). Continuing and developing this research, Levien (2015, 2018) and Li and Semedi (Li, 2014b; Li & Semedi, 2021) examine commodification and enclosures in rural capitalism from above and from below. They examine how regimes of dispossession relate to broader societal interests in specific conjunctures.

The present essay’s contribution to this vast literature is, by contrast, exploratory, molecular, and simple. In plain English, I examine how an asset relates to its user and vice versa, and how is this relationship regulated? The fabrication of things, persons, and authorities has legal consequences but is not done by legal instruments alone. Indeed, the repertoire of techniques of reification, personification, and authorization are lodged in ‘rich, culturally-specific, layers of texts, practices, instruments, technical devices, aesthetic forms, stylized gestures, semantic artefacts, and bodily dispositions’ (Pottage, 2004, p. 1; see also Heyman, 1999; Jacob & Meur, 2010). Le Roy, Karsenty, and Bertrand (1995) develop an approach to analysing complex tenure or property situations in Africa. By allowing for a plethora of different land uses by a great many different land users, the authors capture the constantly dynamic relations between the nature of the use and the characteristics of the user. The work of Keebet and Franz von Benda-Beckmann (Benda-Beckmann, 1981; Benda-Beckmann et al., 2006) and their many supporters (e.g. Sikor & Lund, 2009), is equally stimulating. Focusing on the mutual constitution of land claims and public authority, a dialectics illuminates the inherent contingency of elements that can otherwise appear as solidly distinct. Finally, Pistor’s work on the Code of Capital is an original inspiration (2019). Along with writers such as Birch and Ward (2022) and Chiapello (2023), Pistor investigates how the finance, business, and law communities in society rework the legal constitution of capital and the ways it can be operated. Changing the legal attributes of the elements of capital changes their mutual compatibilities. It allows different elements to be converted into each other or not; it allows them to be mortgaged or not; it allows them to be geared in various ways or not; it allows them to function as collateral or not; and so on. I believe this approach can be broadened from finance and law, to land, property, and rights. By disassembling land, property, and rights, we may identify the major significance of the minor constituent elements of important social conventions, and by identifying how these elements are coded, and by whom, we will better understand reproduction and change in property regimes. A code is a script that tells us the nature of the asset, how it appears to the social world, how it can be held, used, and transacted, as well as how it falls within different jurisdictions of regulation. I opt for the word ‘code’ for its relative firmness as a noun and its lithe creativity as a verb; a canon to follow and apply and a set of standards to invent. Codes are therefore both invocations of interests in the name of conventions, and objects of change and imagination.

This perspective establishes a focus on processes of possession with equal attention to reproduction and change. The ambition is to capture the complexity of regimes of possession with multiple land uses, and a multitude of different and competing actors in a context of legal and institutional pluralism. Hence, when we use this perspective, we will acknowledge that dispossession affects a wider circle of persons than the dispossessed. Underneath the egregious dispossession that changes the future of the dispossessed smallholder are changes in the configuration of assets and rights, and in the authorities to which the future asset-holder is beholden. The whole regime of possession is in the making.¹

2. Regimes of possession

Regimes of possession are constituted by property rights, rights subjects, and public authority. All connect, and each of them is coded in specific ways. Each institutional arrangement specifies the nature and reach of rights, the character and capacity of rights subjects, and the configuration of the relevant authorities.

First, property is not a thing. Property is the social relations between and among people specifying the liabilities and rights to an asset vis-à-vis other actors’ liabilities and rights. Yet, the nature of the asset – the way it is coded and how it appears to rights subjects – affects the way it is held, used, and transacted. I think of assets in the broadest form as something of value, and the codes that specify its valences. The valences, or the asset’s ‘combining powers’, bespeak its potentiality. Coding the valences determines the aspects or visibility of the asset; the ways in which it can be perceived and connected to other assets or rights subjects. Thus, the asset alone does not constitute property, but social codes wrap themselves around the asset specifying how it can be perceived, used, transacted, abstracted in mortgages and other forms of value, and so on. The asset is not simply coded into simple binary either-or-rights. These are generally finely structured axioms specifying what is the acceptable, legitimate, or legal use and transaction of the asset, and, importantly, what are the specific obligations attached to the specific rights (Boone, 2014; Li, 2014a, 2017; Pistor, 2019). Moreover, there are generally rules about the timing and duration of these rights. This means that the coding may allow different stakeholders to invest and hold different rights to the same piece of land, for example. One may graze it, another may farm it at a different moment, and another yet may glean the field after harvest. Each set of rights is sequenced and imbricated within another as the aspect of land goes from common pasture to individual cropped fields, and open access for the benefit of the poor.

Second, a regime of possession specifies who may enjoy the property rights. A rights subject is a natural or artificial person and the codes determining its specific entitlements. That is, what the subject can do with the asset is also specified. Most societies have a long history of differentiated land rights based on difference in status. Gender, race, and caste, as well as class, creed, and conviction, have formed categories of inclusion and exclusion just as nationality – defined in various ways – may qualify or disqualify the individual as a rights subject (Szreter & Breckenridge, 2012). The coding and recoding of who – and what – is a rights subject is at the heart of any property dispute. History is replete with struggles over different groups’ social and legal standing and capacity to hold land.

Third and finally, a regime of possession also includes public authorities that adjudicate. A public authority is an institution and the codes determining its jurisdiction. That is, what say does it have over assets and rights subjects? (Lund, 2016). Such public authorities can turn some claims into rights, and others into dashed hopes. We may share an idea of unity of the state, but empirically, the politico-legal field is often more of a bazaar. Parliaments, governments, administrative institutions, courts, and all their statutory extensions adjudicate, but generally the field is crowded by a much bigger cast of potential law makers (Tamanaha, 2021). It is rare that any single institution has a monopoly on rule making and enforcement. This is a bargaining process where the context – the issue at stake, the other actors, their political and other powers, and the relevant repertoires of legitimation – conditions the outcome. In a context of legal and institutional pluralism, where multiple legal and political systems coexist and intersect, many groups and actors often claim rights to the same resource, and many institutions often claim the authority to govern it. The field of land struggle is often made up of many institutions and actors with varying degrees of relative autonomy and legitimacy. In fact, such fields are honeycombed with many localized subfields of resource struggles effectively coding what becomes law – the rules effectively sanctioned and justified by various authorities or communities in the name of law, whether rooted in statutory principles, custom, religion, or other norms (Moore, 1978).

Each constituent part of the regime of possession plays a role, and the different ways they connect account for the differences between different regimes of possession. Fundamentally, a regime of possession is held together by a set of contracts of recognition. Claimants look for recognition and validation of their claims with institutions. Their claims express the kinds of rights they imagine for a specific asset. And the claim invokes public authority and governance capacity with the institution with which the claim is lodged in the situation. Hence, the processes of recognition of claimants’ specific land claims and other resources as property simultaneously invest the institutions that provide such recognition with recognition of their authority to do so. That is to say, the act of authorizing recursively authorizes the authorizer. Struggles over an asset or a resource are therefore as much about the scope and constitution of political authority as they are about specific claimants’ access to resources. Conflicts are rarely about a single issue only. Questions about the nature of the asset and the property rights to it, as well as the character and capacity of the rights subject, and the authority to govern, are all at stake (Lund, 2016, 2020). Any outcome in terms of property affects questions of authority, and vice versa. Hence, there is a permanent interference between claims, claimants, and institutions of authority.

Who can have what, on what terms, and how is this decided? This makes up a basic analytical template for the analysis of coding regimes of possession. In essence, this essay examines the coding of the elements of possession, and the way in which public authorities and groups of people claim the possession to be legitimate or legal. I focus specifically on property in land. I describe the constituent parts of regimes of possession and their internal dynamics. I give some examples of violent and quiescent change driven by government-engineered recoding of different elements and a few examples of popular push-back.

3. Codes and recoding

Coding and recoding the constituent elements of possession is constant. Codes can be established by law and regulation, by cultural norms, social values, and by practice. Whether codes are being reproduced in a sustained regime, only gradually changing because different actors successfully push boundaries, or whether they change due to government intervention, codes of possession are part of a process. Every action and transaction relating to landed property that conforms to existing codes confirms and reproduces them. A stable regime of possession where rules of rights in assets, rights subjects, and authority appear to endure over time is therefore not stable because nothing happens. It is stable because the codes, the relations of recognition, and the institutions of authority, are actively reproduced. Most regimes of possession do change, however. Let me elaborate.

Codes are often contested and always subject to change. When governments and their agencies engage in dispossession, either immediately or by preparing for future dispossession, they generally do so by recoding the constituent parts of the regime of possession. They engage in property formation, subject formation, and even state formation, while simultaneously restructuring wealth in society. Governments and states generally claim to adhere to the principles of law (Connolly, 1991, p. 202; see also Derrida, 2002). All the same, government engages dispossession by recoding any or all elements of possession in different ways as it weighs its sovereignty against its law abidance. Historically, therefore, much of government land acquisition has been unfair and often there has been little daylight between government acquisition and arbitrary plunder. Indeed, governments often code to secure control over assets and rights subjects. People, on the other hand, often challenge existing codes either to secure assets from government or from each other. When government or other social forces successfully upset a regime of possession, it is, in time, replaced by a new regime of possession with new rights, new rights subjects, and new authorities. Codes are therefore temporary settlements of the valences of assets, the extent of rights, and the reach of authority, until they are challenged and reworked. Many others have worked on assets, rights subjects, property, and regulation and how they interact.² However, most writers have a preferred entry point or emphasis of analysis in the field of regimes of possession. The advantage of working in terms of codes of all constituent elements is, I believe, that it does not privilege any element ex ante. All elements are potentially significant depending on the actual historical struggle.

Every new use of a resource effectively entails its recoding. The new use represents a change in the asset’s valences – the way it appears to the world – and new and old actors will attempt to relate to the new asset in new ways. Just imagine if coltan (or another mineral resource) is discovered in what is farmland. Old land rights will be put under pressure as large groups of people turn cassava fields into thousands of pits for mining. The coveted asset changes aspect from ‘good soil for crops’ to ‘deep holes for extraction’, affecting both rights subjects and their regulation (Vogel, 2022).

But less drama can also accompany coding. Every little bargain, every little transgression and new compromise over possession means an extension and curtailment of the benefit of the property right as it is currently interpreted. Let me give a few examples. In many rural societies, a land right often excludes the right to sell or transfer this right outside of the group. Coded this way, land rights can be kept within a clan or community. Yet, if someone sells his or her right to an outsider anyway, the content of the land right is tentatively recoded. In fact, the asset is recoded to something that is transacted differently, and, therefore, the range of rights subjects is recoded and extended. This may provoke vigorous arguments and countless conflicts, over different forms of interpretations and institutional validations – all potentially in mutual discord. Over time, the old codes may stand, or the new ones prevail. This is an empirical question. Recoding may also reduce the range of rights subjects. For example, women (an example among many possible ones) may enjoy land rights at one moment in time. But if society changes to an illiberal, oppressive form, land may be recoded so as not to be an asset women can rightfully possess in the same way as men. Women may be disenfranchized and eliminated as full rights subjects.

Public authority may be recoded if an institution extends its authority to cover questions it has not dealt with before while other institutions’ reach is marginalized. The division of labour – or rivalry – between chieftaincies and statutory institutions is illuminating in this respect. Over time, there has been a fierce struggle over whose authority is competent, effective, and legitimate. As coding and recoding are part of any transaction and exercise of rights and authority, change is often incremental, and it is not easy to identify any single author of any code or its tweaking. Men and women operate with pragmatic opportunism laced with society’s norms of acceptability. People get inspiration from one another, and each contributes to gradual change. But no one can easily be identified as the principal author or instigator of change. Every recording of the codes of the relationship institutionalizes the regime of possession. In many post-colonial settings, possession is nine-tenths of the law, and the last tenth is paperwork and nimble recoding. In some cases, though, if the last tenth of paperwork is missing, time-honored custom, precedent, and history can unravel in an instant.

Finally, every intervention by an authority modulates all relations and the regime itself. When governments actively and abruptly intervene to change the codes of possession, the outcome can take many forms. Often recoding is a violent affair with ruptures, conflict, and sudden loss. Law is an important, but not the exclusive, vehicle for coding. Sometimes legalization is an afterthought.

The recoding of one element inevitably interferes with the codes of the other elements of possession, and different forms of counter-coding often come into conflict. Let us discuss some historical examples of how governments have affected the property rights, the character and capacity of the rights subjects, and the nature of the public authority that adjudicates in conflicts. For the sake of clarity and simplicity I present the examples with emphasis on assets first, rights subjects second, and public authority third. Such stepwise presentation allows us to look at codes and recoding while paying attention to where the devil resides: in the detail.

3.1. Recoding assets

Colonization may represent the most dramatic recoding of landed property in human history. Conquest was often accompanied by a legalization of the power shift. Governments have often intervened to decide whether land or land rights can be transacted as a commodity.

In the late nineteenth century, the British government criticized the Egyptian government for the arbitrariness of the local system of property. Together with other European powers and the European banks, the British government exercised great efforts to turn land in Egypt into mortgageable assets. They aimed to make the Egyptian society establish what they called ‘principles true in every country’ (Mitchell, 2002).

In 1863, the Ottoman ruler in Cairo, Isma’il Pasha, had given one hundred acres of land to his coffee maker. And another hundred acres to his barber. It was at his pleasure. What is more, it was not his property, but simply land in his country held by smallholders and villages whom he dispossessed by gifting their land. In fact, he handed out some sixty thousand acres of land to his entourage during his first eighteen months in office. And still he found time to acquire some fifty thousand acres for his own estate (Mitchell, 2002, p. 54). The land was not new to cultivation; the Pasha simply introduced a new landlord on top of the existing communities, disenfranchizing them through the same motion. In the eyes of the British, this was an example of arbitrary Oriental rule and a violation of the sanctity of property and reason. It prompted the British to push for financial and legal reforms that were to follow the principle, ‘government of laws, not of men’, echoing doctrines expressed by authorities such as Aristotle, Montesquieu, and the Massachusetts Constitution (Esmeir, 2012, p. 199). And, most significantly, they wanted to redefine the asset, land. Private property was part and parcel of these new codes and principles. One of the profound paradoxes, however, is that the private property claims that were to be ‘consolidated as private rights, especially the large ones, came into being through the “arbitrary” grants that Isma’il Pasha had made and those of his uncles and grandfather before him’ (Mitchell, 2002, p. 56). Thus, in effect, the arbitrary distribution of the assets was subsequently solidified and coded to make them compatible with the facilities of modern finance. The Egyptian government recoded the feudal estates as capitalist enterprises. Yet this change mainly concerned the ‘outside’ or aspect, of the unit, allowing it to contract loans and operate as a company among other companies, banks, and so on. On the ‘inside’, however, recoding seemed modest at first. The estate owner decided what the peasants farmed, and he controlled most of the links to external markets for crops and labour. On the ‘inside’ the estates remained sovereign feudal islands, even retaining their own penal systems (Esmeir, 2012, p. 202). Yet the rights structure of the landholders was, in fact, affected. Primary right holders – the new landlords – were privileged, while the rights of secondary right holders – the peasants – were pared. When the newly recoded estates were sold, it became apparent that many peasants had been reduced to simple tenants with no valid claims on the land they farmed. Their land was now treated as a commodity owned by the landlord of the estate.

On the ‘outside’, turning Egyptian land into financial collateral not only perpetuated the arbitrary land holdings under new rights. It changed the valences of the asset with effects on its governance. As government passed laws to privatize land and thereby code it to become collateral for credit,³ a global recession hit in 1874, and the ruler of Egypt was unable to service his debts to European and American banks. The country was forced by its creditors to set up a mixed court system to govern relations between domestic and foreign companies. This parallel legal system, based on French law, put immense pressure on the Egyptian defaulters. Ironically, the ‘European-held land was not subject to confiscation since European governments objected to the application of confiscation laws to their nationals’ (Esmeir, 2012, p. 212). These screws were coded and reserved for Egyptian thumbs. As Isma’il Pasha was eventually unable to service his debts, the foreign banks established a Debt Commission which took control of the country’s finances, France and Britain had him deposed in favour of his son, and, finally, in the face of political unrest, Britain invaded the country in 1882, turning Egypt into a de facto British protectorate under nominal Ottoman sovereignty (Mitchell, 2002, p. 73). What started as a declared ambition to nudge along the inevitable by recoding the asset – land – changed the rights to it and ultimately its government. Changing the valences of assets to commodify them entailed a skewed reorganization of rights, it fired up political resistance in different ways, offering pretext for colonial military intervention. Thus, coding and recoding of the estate eventually affected more than the nature of the asset, both on the ‘inside’ and the ‘outside’ of the estate.

Paradoxically, there are examples of the opposite policies of coding as well. Colonizers have also tried to prevent, or slow down, the commodification of land. As colonizers saw capitalism and the commodification of land as distinctly modern, they often found land sales incompatible with customary law (Moore, 1986), just as they saw possible detribalization as a threat to colonial stability (Li, 2010). Colonizers often insisted that for customary claims to be recognized by the courts, they had to be ancient and unchanged (Chanock, 1998; Merry, 1991). Few customs can live up to that in practice, but colonial imaginings of chieftaincies and customary law often understood them as ancient structures that would eventually evolve into modern form. It was therefore argued that modern land tenure was a premature innovation incompatible with current native culture. Lord Lugard, the Governor-General of Nigeria, captured the philosophy when he argued that.

It seems preferable that the natural evolution of land tenure should not be arbitrarily interfered with, either, on the one hand, by introducing foreign principles and theories not understood by the people, or, on the other hand, by stereotyping by legislation, primitive systems which are in a transitional state. Each advance should be duly sanctioned by native law and custom and prompted by necessities of changing circumstances. Such a policy of patient progress is best adapted to the country. (Lugard 1929/1965, p. 301)

Lugard’s prudence and his faith in native law and custom are admirable. Yet, his eye for the necessities of changing circumstances betrays his cool colonial realism.

Other reasons not to commodify land have been voiced over time. It has been argued that some land should not be a commodity at all but be conserved for common humanity as a reserve of pristine nature (Neumann, 1998). National parks and sanctuaries are thus believed to be taken out of circulation, as it were. Whenever land has been defined as a non-commodity, it effectively also meant dispossessing the resident local people of potential rights to their assets. It has often prompted their eviction. Such eviction of populations to less prosperous landscapes has also opened a path to further recoding of nature reserves into specific resource extraction areas.

However, defining land as non-commodity has also worked as a protection against state control. For example, in British India in the early 1900s there was a wave of Islamic pious endowments, or so-called waqfs, created by property-owning Muslim families (Rhoads, 2023). They saw the British Indian courts’ interpretation of inheritance in Islamic law as too stringent and the uncertainty and reduction in individual or community control over inheritance led them to create endowments to secure their immovable property. Waqf properties are non-transferable, so, rather than being exposed to dispossession by the state, people coded their property into waqfs to preserve rights to assets during periods of tumultuous political change (Rhoads, 2023). By donating land to Allah, owners of tens of thousands if not hundreds of thousands of properties across what is now India, Pakistan, Bangladesh, and Burma removed their assets from circulation, protecting them under a legal shell by shifting their ownership. Setting up individual or family charities as beneficiaries essentially took the assets out of the market and preserved family wealth and property. British property law had turned land into transferable assets, but by coding assets as Islamic pious endowments and thereby non-commodities, people with landed property could preserve the control of their assets through the interpretation of Islamic inheritance law in British Indian courts. This was, indeed, a tug-of-war to code land assets to be within or beyond the reach of the state.

With technological development, new assets emerge and can become rights objects and part of a property regime. One of the most striking recent developments has been the commodification of carbon sequestered in trees through the so-called REDD projects (Reducing Emissions from Deforestation and Forest Degradation in Developing Countries) (Mahanty et al., 2013; Streck, 2020). In these programmes, trees are no longer merely trees for timber, firewood, tree crops, and so on. They represent a potential capture of CO² because of their carbon storage capacity. Hence, coded for their carbon sequestration function by the international community through common frameworks, the rights claims, reflecting ownership and use of trees and forests, change. Again, the recoding of the asset changes the entire property regime.

The examples above show how difficult it is to focus narrowly on the assets. While the coding of assets can be considered a minor technical regulation to bring the valences of the recoded assets in line with what is considered expedient for development, the effects are difficult to contain. Recoding the quiddity of a thing reverberates throughout the entire opportunity structure of a regime of possession. Moreover, the asset is only one out of three knobs to turn. Let us move on to focus on the other two.

3.2. Recoding rights subjects

In addition to access to benefits, claimants have also always been subjected to coding to define who is a rights subject and how. The ability to lodge a property claim often differs according to political identity. That is, attributes of gender, religion, race, and caste, and so on, (not to speak of the attributes of artificial persons such as families, villages, ethnic groups, companies, the state, and so on) have different valences allowing for different degrees of success in the property claim.

Gender may well be the most ubiquitous categorization with property implications. Islamic law, for example, is often referred to as apportioning inheritance with one part for daughters and two parts for sons. So, while women are rights subjects, they are inferior to men in this context. Yet, while this rule is often presented as hard and fast in local communities, it is usually just the starting point for negotiations. On the one hand, daughters are often under social pressure to relinquish even their inferior share of the inheritance to their brothers with the arguments that they have married and abandoned the village land and family home, that they do not farm, and do not have their brothers’ responsibilities. On the other hand, though, while arguing for inequality, Islamic law sometimes offers a better option for women than different customary norms that would leave them entirely empty-handed (Agarwal, 1995). Ironically, different attempts at strengthening smallholder rights have often dimmed secondary rights. For example, with land reforms, women’s land rights have often been subsumed under household land rights (effectively meaning the husband’s), and the access right of grazers and gleaners has often been recoded as nothing more than a charity enjoyed at the pleasure and benevolence of the farmers. When primary rights are recoded, secondary rights tend to dissipate.

Property claims are often made via personal status law (divorce, inheritance, and so on) which can mean different outcomes (and gendered impacts as well) in areas with plural legal systems, or much of the developing world, due to the codification of such systems under colonial rule. Colonialism often worked to code and recode rights subjects through codification of personal laws. In the European colonization of South America, the transformation of nature into commercial assets dovetailed with the ambition to convert the ‘wild’ Indian into a follower of Christ. Through conversion to Catholicism, the Indian graduated, so to say, to become a vassal of the sovereigns of either Portugal or Spain and acquired the faculty to hold land (Herzog, 2015, pp. 71–133). The new faith recoded the person into a rights subject – of the lower order, to be sure, but still of a status with more legal visibility and presence than a pagan in the eyes of the colonial government.

The malleability of faith has offered opportunities of oppression and situational adjustment in many ways. Especially in South and Southeast Asia, aeons of time have been spent in court trying to figure out how to classify claimants (Are they Muslim? Are they Buddhist – and if they are Buddhist, are they Chinese or not?), and clever arguments around religious practice and belief have been used to make claims based on the most advantageous personal law for inheritance cases (Benton, 2002; Rhoads, 2023).

Land claims along lines of political identity are therefore not unusual. The relations between nationality, ethnicity, religion, and property are revelatory in the Israel/Palestine settler society. Zionist settlements in Israel/Palestine were not primarily propelled by economic considerations of profit and resource exploitation, but by an ethno-national ambition to create a Jewish homeland. People who were displaced and dispossessed often had documented rights to the land dating back to Ottoman rule (Bhandar, 2018). To promote Jewish settlements, the Israeli state denied, ignored, and erased Palestinian land use and rights and created the impression of a vacant space in which to settle. In the same vein, no Palestinian could have their property documents dating back from the Ottoman era validated by Israeli courts. An injustice, even more absurd for the fact that Jewish settlers, who had bought land from Palestinians and could produce Ottoman documentation for the purchase of their plot, had their rights recognized by the state. The example shows that there is no smooth one-way street from possession to registration and secure property. Rather than a standard sequence for settler colonialism, it is safer to assume, Bhandar demonstrates, a recombinant and erratic movement where repertoires of physical possession, registration, improvement, and armed territorial control are performed in conjunction with legislated political subjectivity in open-ended struggles over space and resources. Hence, labels of political identity are often a code for land rights as well as their denial.

If we focus on rights subjects, the above examples show that both self-identification and assigned status is important. Many identity attributes – gender, religion, ethnicity, nationality, and so on – are often brought to bear as if their significance was permanent and transcendental. They are naturalized (Oomen & Tempelman, 1999. See also Djalins, 2015). Ironically, however, people and institutions determine the significance of identity in the act of invoking it and thereby make up what they believe to be already there. Assigning rights to political identities seems to be presented as a formal recognition of a cultural fact. Yet, when states and the powerful invest difference with political meaning, when difference is institutionalized with privilege and exclusion as a result, difference becomes a problematic of government, and the ground is prepared for envenomed, enduring conflict.

3.3. Recoding public authority

Recoding assets and rights subjects are important instruments in dispossession. Yet recoding public authority and the reach of government in matters of property are equally consequential. In fact, government policy can have extended ripple effects even if it often takes the form of recoding specific limited elements of the regime of possession. The colonization of Indonesia provides an instructive example that has consequences up to the present day (Lund, 2020). Here, the recoding of authority also had implications for rights subjects as well as the asset itself. The colonial government created and deliberately exploited the confusion between property and domain, allowing it to manipulate the reach of public authority. Statutory land laws in Indonesia date back to colonial times. The Forestry Law of 1865 established the basis for state-controlled forestry. The law declared three-quarters of the colony’s territory as forest, and forests as state domain, with draconian measures of exclusion directed at the population. The Agrarian Law of 1870 covered whatever land had not been categorized as ‘forest’ by the Forestry Law and declared that all lands to which there was no private or customary right recognized by law were to be considered the domain of the state (Peluso, 1992). Hence, by embedding the principles of state domain, the Forest and Agrarian laws legitimated the colonial authority and its acquisition of land, and by limiting the recognition of indigenous rights to a bare minimum and making the recognition of these land rights dependent on complex and expensive administrative procedures, the colonial government legalized the dispossession of practically the entire population.

It remains a legal controversy whether the Dutch legally assumed sovereignty, and thus the public rights over the colony, by turning land into the domain of the state (Bedner, 2021). It has therefore been easy to confuse ‘state land’ (domain i.e. the state’s sovereign control of all land) with ‘government assets’ (specific pieces of land owned by government agencies as one economic operator among others). This is the confusion between ‘state interests’ and government companies’ ‘property’. Consequently, successive governments in Indonesia have consistently, since colonization, operated as if all land ultimately belongs to the state as owned property and not simply as politically controlled domain (Lund, 2023).

In practice, the sweeping legal declarations of the Forestry and Agrarian laws coded the ‘state’ as the owner of virtually the whole archipelago, disenfranchizing all existing institutions and communities. Government left intact, at least officially, all private rights that resembled ownership and its derivatives. All land used for agriculture and housing by the indigenous population was, in principle, recognized as being under local rights that should be respected, as were, indeed, some forest areas. Nonetheless, governments have often felt confident enough to override any current uses, however time-honoured or customary, and backed by whatever legal document, by invoking state interests as an equivalent code for state property. This ensured a veneer of general legality for all the subsequent specific appropriations when the time came. Theft was laundered in advance, and the actual appropriations – for countless forest, mining, and plantation concessions – would then look like simple technical operations of legal confirmation for each specific area in question. The state’s authority over land thereby becomes its ownership. Hence, by recoding assets, rights subjects, and public authority, the state established itself as a rights subject and tenant in the form of ministries, state companies, and other institutions with property interests as well as the public authority that could decide in the matter. This double role has been a source of confusion and opportunity.

A contrasting example of re-coding and how rights, rights subjects and authority articulate comes from major regime changes to and from socialism in Eastern Europe, East and Southeast Asia. Dispossessing all citizens of property rights during a revolution was radical re-coding of assets, of rights subjects, and especially of the public authority over land. Yet, the complexity pales next to the knottiness of re-commodifying land, re-enfranchizing citizens with ownership, and re-establishing public authority over land during post-socialism. The task of giving property back to the people (and heirs) whose land was expropriated, without returning to a situation of inequality that prompted the revolution in the first place, seems forbidding (Dorondel, 2021; Ho, 2005; Sikor et al., 2017; Verdery, 1996; Volkov, 2002). No ‘return’ is ever really a return, but the start of a new re-combination of codes of possession under new circumstances.

Recoding public authority is probably the most fundamental and dramatic change to impose on a regime of possession. While all regime elements are linked and any change in one element affects all others, direct political intervention in structures of authority has often been done in situations of exception (Agamben, 2005). Colonial conquest, civil war, or socialist or post-socialist revolutions in America, Egypt, Israel/Palestine, Indonesia, East and Southeast Asia, and Eastern Europe and elsewhere, have created moments of opportunity when existing authorities were abrogated and their rules – their codes – annulled. This cancellation may have been legalized and justified, but usually post festum and effected by the incumbent power that replaced what was being erased.

Regimes of possession are always in the making. Every action and transaction are part of a greater, incremental, negotiation over the valences of assets and the rights to them, over who can enjoy them and how this is adjudicated. Some recoding is the result of direct government intervention. Yet the elements are closely connected, and every change in the codes of just one element reverberates through the coding of the others. The stepwise discussion above suggests that practice and local norms may be as important as government policy in the coding of assets and rights subjects. The effective coding of public authority, however, seems to require a degree of coordination and sheer power which is – short of a revolution – more often in the hands of governments and other consolidated authorities.

Governments and states generally claim to operate through law. Yet, government policies frequently spawn resistance, and no government land dispossession takes place without the threat of violence. When a state claims the legality of its intervention to recode any of the elements of possession, it can make sense to see this operation as lying between perfect law-abiding and sovereignty, between rule of law and rule of exception. The legal infrastructure of postcolonial societies has often been captured by an autocratic elite in society (Aspinall & van Klinken, 2010; Heyman, 1999; Hussain, 2003; Mattei & Nader, 2008; Massoud, 2013; Jayasuriya, 2001; Lev, 1985; Moustafa & Ginsburg, 2012; Nader, 2009; Nonet & Selznick, 1978/2009). Where the separation of powers exists on paper only, political control over legal institutions and rampant official discretion places the legal system outside the proper reach of the citizenry. When governments use legalism as political techniques to unduly paralyze opposition, we can talk about rule by law. With this approach to legality, law may be instrumentalized to justify policies with little explicit regard for justice, as law is presumed to embody legality itself. Law has often been a claim to legitimize the unjust. For example, when colonial governments have imposed laws of property, developed in the metropole, that effectively rendered colonized people landless because they had no valid proof of ownership (Lev, 1985; Merry, 1991, 2000). Law has legalized the dispossession of land, and it has further legalized the eclipse of political power and legal rights and thereby become the handmaiden of power and instrumental in plunder, while the legal profession has disowned liability by simply claiming to obey orders (Arendt, 1963; Bedner et al., forthcoming; Osiel, 2009). People may have been expropriated according to law, but they have hardly been afforded justice.

4. Conclusion

If we see regimes of possession as constituted by assets, rights subjects, and public authority, the coding of each of them defines who can have what, on what terms, and how it is decided. The analytical advantage of talking in terms of codes is twofold. First, by deconstructing possession into its constituent codes we can compare very different regimes over time and space. ‘Incomparable’ situations like challenged Ottoman rule in Egypt and conversion of South American Indians can speak to and illuminate each other. Second, by boiling down the constituent elements to their codes, we can resist an implied causal hierarchization between them. It leaves good scope for the empirical analysis. Every code of possession affects all the others but not according to a prescribed, predictable protocol. The context must explain the how and why.

While it can be hard to identify any single author of any code, governments seem to have season tickets to the field. If governments operate in accordance with the rule of law, resistance to recoding and dispossession may be conducted through the court system. However, this seems to be rarer than one could hope. Instead, governments often rule by law proclaiming that simple legality ensures justice. In situations where laws have been imported and large groups of the population have been legally disenfranchized, actual dispossession may well be done with law in hand, but often with little chance of justice. People may develop a homespun legal vocabulary trying to counter-codify assets, rights subjects, and public authorities in connection with political protests.

In colonial or frontier situations, when existing rights and institutions are suspended – when public authority itself is recoded – the legal situation appears often to be open-ended and close to one of exception. The exception allows the might and interests of the powerful to prevail until this new situation can be codified and institutionalized. When governments rule by exception, recoding can be as hard to legitimate as it is to oppose. The presumption that governments, by default, operate within the bounds of law is questionable when protections of citizens’ rights are suspended. The endurance and legitimacy of dispossession and any imposed recoding of possession may be difficult to sustain by consent alone, and when governments are ready to rule by exception, violence is never far away.

Acknowledgements

I am indebted to many people for reading and commenting on earlier drafts. All debts are now encoded into the grand barter table of mutual obligations and friendship. It includes Adriaan Bedner, Ahmad Dhiaulhaq, Bernardo Almeida, François Questiaux, Joel Gustav Persson, Kasper Hoffmann, Maria Cariola Eriksson, Mattias Borg Rasmussen, Neil Loughlin, Oliver Hunt, Thorsten Treue, and Ward Berenschot. The journal’s two anonymous reviewers provided immense help – twice – through their piercing and constructive reading. Thanks to Mike Kirkwood who took care of language editing. Thanks, are also due to The Independent Research Fund Denmark for sponsoring and encouraging my work with the grant, Conjuring Urban Legality – Institutionalizing Land Access at the Urban Frontier.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by European Research Council [grant number 101140661]; Independent Research Fund Denmark [grant number 3099-00068B].

Notes on contributors

Christian Lund

Christian Lund is the author of Law, Power, and Politics in Niger (Lit Verlag/Transaction Publishers), Local Politics and the Dynamics of Property in Africa (Cambridge University Press), and Nine-Tenths of the Law. Enduring Dispossession in Indonesia (Yale University Press). He is professor at the Department of Food and Resource Economics, University of Copenhagen ([email protected]).

Notes

1 This article draws on two workshops, online in 2020, and in Leiden in 2022. It is also a continuation of my own work of re-directing attention from established categories (state, property, citizen, legal) to the processes that establish them. My work on public authority (Lund, 2006) shows how many institutions have a twilight character; they govern but are not part of formal government. Yet, they assume forms that we associate with the idea of the state. This has effects on property and citizenship. Instead of the conventional idea that property and citizenship are inherent qualities in an asset and a political right, my argument is that these qualities are actively conferred on claims in dynamics of recognition (Lund, 2008, 2009, 2016, 2021; Lund & Boone, 2013; Sikor & Lund, 2009). It recasts law as a process rather than firm categories of legal/illegal (Rasmussen & Lund, 2018; Lund, 2020, 2023). People aim to give their claims an air of legality regardless of whether they are genuinely congruous with statutory law. The present essay takes these thoughts forward and establishes a conceptual language that allows comparison of the most disparate cases of possession. It allows us to appreciate the permanent vibrancy of the opposing acts of reproduction and change (see Moore, 1978). Elements of my earlier publications appear in the present text as inspiration, as turns of phrases, paraphrasing, and a few entire sentences.

2 There is a lot of inspiration to siphon off from Benda-Beckmann et al. (2006), Benton (2001), Bhandar (2018), Guha, (1996), Hall et al. (2011), Holston (1991), Jacob and Meur (2010), Latour (2010), Le Roy et al. (1995), Macpherson (1978), Mamdani (2020), Mitchell (1988), Pistor (2019), Ribot and Peluso (2003), Rodima-Taylor and Shipton (2022), Rose (1994), and Scott (1985).

3 Something which happened in England as late as 1882 for land belonging to the nobility (Pistor, 2019, pp. 35–45).