Property, as we have come to know and protect it, is dispossession. This is the heart of Sherally Munshi’s Dispossession: An American Property Law Tradition, a carefully researched and richly nuanced piece that’s brilliant in the simplicity and clarity of its message. As Munshi illustrates, what appears as property from a vantage point of privilege may be understood equally validly as dispossession and this implies that the injustices associated with commodification and inequitable distribution cannot be redressed except from below. Not only from the perspective of those most dispossessed, but also, quite literally, from the ground up.
“The property law canon is full of forgetting.” (P. 1031.) Munshi’s stated intent is to develop a counternarrative of dispossession utilizing what we’ve learned from critical race theory as well as studies of settler colonialism and racial capitalism. Dispossession develops this narrative beautifully, enriching both property and critical theory by incorporating equity-minded insights from contemporary Indigenous and Black activists who counter the “uplifting narrative of national progress and racial redemption” that legal discourse and education promote and perpetuate. (P. 1031.)
We tend to presume that property is simply a material reality—much as race is regularly presumed a biological fact. From there, struggles for justice are often framed in terms of property’s equitable (re)distribution. But the world looks very different if property itself is understood as the tangible manifestation of others’ dispossession.
The article is bookended by concise theoretical introductions to property law and to the formation and functions of race. Beginning with Locke, the introduction to property traces the dominant property narrative and its challengers, anchoring the discussion to come in a manner that students, particularly, will find helpful. The theory of racial formation and function wraps up the work by extending Cheryl Harris’ seminal work on whiteness as property to an analysis of whiteness as dispossession, illustrated by the anti-colonial canon of W.E.B. DuBois, Frantz Fanon, Aimé Césaire, and Albert Memmi.
Dispossession fleshes out its conceptual framework with a detailed history of the impact property law has had on claims to territory and on the construction of personhood. Munshi first tackles “Property’s Empire,” tracing the racialized history of dispossession on this continent, from the forced relocation of Indigenous peoples to the theft of Black property, both rural and urban, to the preclusion of Mexican and Asian land ownership. This, she suggests, provided the foundation for the United States’ imperial expansion.
Within the nuanced narrative Munshi provides, I am especially impressed by her ability to transform the oft-told tale of Johnson v. McIntosh into what she describes as the equivalent of far too many land acknowledgments today— “acknowledg[ing] the wrong of colonial dispossession only to place it beyond the scope of justiciability or legal redress,” thereby laying the foundation for “its great achievement: the privatization of conquest and the domestication of empire.” (Pp. 1041-42.) In turn, Munshi’s recasting of this case enables her incisive assessment of how the doctrine of preemption, with its colonizing constructs of “waste” and “improvement,” has been used to eradicate Indigenous, Black, and other “undesirable” communities throughout U.S. history.
The most creative contributions of this article may lie in the section entitled “Property and Policing.” The title evokes the frequently discussed lineage of our current carceral state, tracing the history of policing back through Jim Crow laws and Black Codes to the construction of enslaved Africans and American Indians as the personal property of their “owners.” Munshi’s critical insight here is that the “tropes of dehumanization and rehumanization fundamentally misapprehend the institution of slavery and its aftermath” because it was, in fact, an institution designed not simply to erase the humanity of enslaved persons but to maximize the exploitation of all their human capacities. (P. 1061.) To view emancipation as “rehumanization,” Munshi argues, signifies “inclusion within the project of racial capitalism, rather than its abolition.” (P. 1062.)
Forfeiture and fault were the colonial constructs that justified not only the severing of Indigenous peoples from their lands, but also the enslavement of people of African descent. Those being deprived of their resources, their agency, and even their lives, were made to forfeit their rights when they failed to fulfill obligations imposed upon them by the colonizers. As Munshi explains, it was this colonial worldview that enabled Black personhood to be defined in terms of civil death conjoined with criminal culpability—the construction of people who had been entirely stripped of their rights but nonetheless remained liable for their actions. (P. 1065.) To illustrate the extent to which this construction is still prevalent, Munshi weaves the narrative of Michael Brown’s 2014 killing in Ferguson, Missouri, into the larger tapestry of Black dispossession in metropolitan St. Louis. This story, in turn, illustrates the futility of addressing abusive policing without addressing its underlying structural drivers, most notably those involving property rights.
What I most appreciate about Dispossession is that Munshi calls out the elephant in the room—the question of whether “the charge of dispossession concede[s] the naturalness or universality of a right to possession.” (P. 1038.) She acknowledges that the discussion itself “risks obscuring or even deforming what settler colonialism has taken from Indigenous peoples—not an already-objectified property interest in land, but a relationship to the land that is not reducible to commodification or ownership.” (P. 1039.) By taking this issue seriously, Munshi frees us to move beyond solutions framed in terms created by the problem itself, to think in terms of relationships, responsibilities, and the restoration of balance in our lives and our world.
Dispossession provides a devastating critique of the origins, functions, and consequences of property law in this society, exposing a bundle of jurisprudential principles so normalized that they are almost transparent—much like whiteness. Yet Munshi does not appear discouraged by this exercise in racial realism. Somewhat counterintuitively, I found Dispossession to be an uplifting piece, perhaps because it recognizes that decolonization requires us to look beyond the constraints of the status quo to “practices that have flourished not before or outside colonial capitalism, but alongside it, in spite of it.” (P. 1093.) Munshi concludes by urging us “to reclaim from property law the question posed by colonizers: to whom does the Earth belong?” (P. 1096.) Directing us toward commonality and collectivity—principles essential to human survival—Munshi paves the way for us to consider another, perhaps even more essential question: How do we belong to the Earth?
