[Theft is Property was the first book discussed by the Tebhaga Readers Collective, between July – September 2026. This review draws on the collective’s discussions.]
Introduction: Three Ideas
Rob Nichols’ Theft is Property! begins with the following provocation: settler-colonialism involves the violent rupture of indigenous peoples from the historical lands on which they have resided. However, the articulation of this rupture in the language of dispossession, or the loss of rights to the land (including rights of property), entails importing a conceptual and legal vocabulary that distorts the actual relationship that these peoples have with the land. Furthermore, this vocabulary is part of the very framework deployed to bring about – and legitimate – the rupture in the first place. That is:
In this obvious, ordinary and commonly used sense of the term, dispossession means something like a normatively objectionable loss of possession, essentially a species of theft. Inasmuch as this is implied by the concept, however, a new set of conceptual and practical complications arise. For such a formulation appears, first, generally parasitic upon a background system of law that could establish the normative context in which a violation (e.g. theft) could be recognised, condemned, and punished. Second, and more specifically, the term seems necessarily appended to a proprietary and commoditized model of social relations. [p.6]
How then should we understand and engage with this process?
Through the course of the book, Nichols addresses this through three overlapping ideas. The first is about method. Nichols insists that concepts such as “property,” “dispossession,” “expropriation,” and so on, cannot be understood independently of the material historical circumstances within which they have been embedded, and in the contexts of which they have been deployed: “normative concepts [are] immanent to a particular, historically, and sociologically located struggle.” [pg. 12]
The second is the notion of “recursive dispossession.” Recursive dispossession has two elements. The first is that “the dispossessive processes through which a system of land ownership was generated in the Anglo settler world … used a form of widespread and systemic theft as a means to generate property, thereby producing that which it presupposes.” [p. 117] What this means is that the rupture of indigenous peoples from their land was also the basis for imposing the legal regime of property relations – which, in turn, was then projected backwards in time, so that the act of theft/dispossession could, itself, be only understood (and legitimated) within the framework of these relations.
At the same time – and this is the second element of recursive dispossession – indigenous peoples were granted proprietary rights “that could only be fully actualized in the moment of [their] extinguishment, that is, by transferring … to another. This was a truncated, or “structurally negated,” proprietary right.” [p. 117] In other words, at the moment at which the settler-colonial State extended the property rights regime to indigenous peoples, in effect, and because of the prior history of dispossession, the only meaningful use they could make of these rights was by transferring them to someone else.
The third – which flows from the second – is the idea the property rights are regimes of both ascription and alienation. In terms of ascription, they create a class of rights-bearers who can now make claims against the State that could not previously be made. However, this very process then conscripts these rights bearers into the very property regimes that were responsible for their dispossession: this is the feature of alienation. Nichols writes:
… to be dispossessed of oneself is to have a certain proprietary claim ascribed to one’s personhood (a claim of self- ownership) under conditions that demand its simultaneous negation. It is, again, to come to “have” something in such a manner that this possession cannot be actualized except through alienation. This matters, I contend, because it is so central to framing the forms of subjugation and domination that flow from this act of alienation as “freely” given, that is, as an act of voluntary contract and consent. [141]
Rethinking Primitive Accumulation
Nichols develops this framework in conversation with Marx’s account of primitive accumulation. Put simply, Marx argued that the enclosure movement in mid-18th century England violently and coercively dispossessed producers of their land (thus severing them from direct access to the means of reproduction) with a view to conscripting them into the system of wage labour (proletarianisation). This led to both market-formation and the separation of agriculture from industry. As Nichols summarises it:
The long, internally complex process of primitive accumulation changed all of this by first subjecting the feudal commons to various rounds of “enclosures.” Lands were partitioned and closed off to peasants who had for hundreds of years enjoyed rights of access and use. This meant that peasants could no longer rely on the commons as the means for the basic reproduction of their communities (i.e., food, shelter, clothing, etc.). In these moments, they were subjected to dispossession— that is, they lost their immediate relation to the means of the reproduction of social life (e.g., the common lands). This expropriation was intimately linked to a second component: proletarianization. Without direct access to the common lands that once had sustained their communities, the feudal peasantry found themselves unable to fulfil their obligations to the landed nobility, nor indeed to maintain the material reproduction of their families and communities. The only possession left to the peasant was his own personhood, so peasants contracted themselves into waged employment for the first time, selling their labor directly. They were still producers, but now their production was mediated by way of the wage. Third, the emergence of a class of people engaged in the selling of their labor produced for the first time a market, that is, a competitive system in which laborers would vie with one another to set a price on the abstract unit of labor time. Fourth, the formation of a market in labor and commodities had implications for the geospatial organization of populations. The emergent competitive labor pool meant that feudal peasants had to move wherever employment could be found. Hence, dispossession and proletarianization were also directly related to urbanization and the separation of agriculture from industry… In a characteristic dialectical move, Marx views this as a process of separation and recomposition. [p. 60-61]
A simplistic view of this process views it as stadial: that is, primitive accumulation was the first stage, where violence was used to separate the producers from the means of production. That having been done, we now move to the “silent” compulsion of established capitalism, where contract and formal freedom constitute – and structure – the exploitative relationship between the owners of the means of production and the dispossessed (violence is still present, of course, but at the margins). A more sophisticated view eschews the stadial approach, and posits a world where economic and extra-economic coercion continue to exist side by side, depending on whether we are in the capitalist core or in the periphery, in the colonial metropole or in colonised spaces.
Nichols argues that in the context of settler colonialism, however, this account of primitive accumulation needs to be disaggregated: in particular, by separating the processes of dispossession and exploitation. That is to say, “it is possible … to recast dispossession as a distinct category of violent transformation independent of the process of proletarianization and market formation.” [p. 74] Dispossession is to be then considered on its own terms, as something that:
… create[s] its own object of appropriation: dispossession generates and then monopolizes a distinct medium of human activity in the world via the legal and conceptual construct “land” … what follows from this is that dispossession comes to name a distinct logic of capitalist development grounded in the appropriation and monopolization of the productive powers of the natural world in a manner that orders (but does not directly determine) social pathologies related to colonization, dislocation, and class stratification and/or exploitation, while simultaneously converting the planet into a homogeneous and universal means of production. [p. 83-84]
Nichols demonstrates this through a historical analysis of the dispossession processes undertaken in 19th century North America (deploying his first idea – a methodological approach to concepts that embeds them in their historical contexts) and shows how “individual moments of land acquisition were connected and transformed by one another in a way that generated a qualitatively new, integrated global phenomenon— namely, the world market in land.” [p. 92] In other words, “colonization generates a form of commodification so as to divest Indigenous people in a distinct and particular way of their ancestral homes. The duality of this process (propertization and systemic theft) is what the concept of dispossession is meant to capture.” [p. 98]
An important corollary of this is the interrogation of classic liberal concepts of voluntariness and consent, in this context. A liberal property rights regime is, of course, premised on the notion of voluntariness and consent in free property transactions; but just as the labour contract masks the actual domination beneath formal freedom, so – following Nichols’ historically informed account – does the property rights regime, given how it is bound up in dispossession. As Nichols notes by way of conclusion, towards the end of the book:
This matters, I contend, because it is so central to framing the forms of subjugation and domination that flow from this act of alienation as “freely” given, that is, as an act of voluntary contract and consent. Not only is this mode of dispossession historically pervasive; it is perhaps the primary form in which domination operates today in these contexts, given widespread liberal commitment to the notion that subjugation can only be legitimate if it is entered into voluntarily. I contend that historicizing the question reframes it in such a way as to render it more tractable. [p. 141]
Socio-Economic Rights as Recursive Dispossession
There is much to think through – and no doubt to critique – in Nichols’ engagement with Marx, with his reworking of the concept of primitive accumulation, and with the history that he presents. As a constitutional lawyer, however, what I find most useful in Theft is Property! is the potential application of the overlapping ideas of recursive dispossession, and of ascription and alienation, beyond the immediate context of property regimes in settler-colonial societies.
Consider, for example, the example of socio-economic rights. After an abortive attempt at codifying a “right to work” in the French Constitution of 1848, there followed a catalogue of socio-economic rights in the revolutionary Mexican Constitution of 1917, and in Latin American Constitutions that followed. However, socio-economic rights truly began to proliferate in written Constitutions after the 1980s, and in the wave of Constitution-making in the 1990s and 2000s. Along with this proliferation came judicialisation: socio-economic rights were taken to Court, and judges developed a range of doctrines in socio-economic rights cases, familiar to comparative constitutional lawyers: margin of appreciation, minimum core, meaningful engagement, and so on. In many respects, this continues today. In the dominant literature on socio-economic rights today, they are not viewed as a panacea to the vast range of problems our societies face today (of course), but they are – at their best – posited as tools to mitigate some of the worst excesses of poverty, inequality, and precarity in the neoliberal State.
The periodisation I refer to above raises, however, an interesting question: what else was going on at the time at which socio-economic rights were in the ascendant – in constitutional texts, in scholarship, in judicial doctrine? The answer – as was recently suggested to me by Professor Mwangi Githinji in response to talk on socio-economic rights in India – was that this was the era of the retrenchment of the welfare State, the global entrenchment of the neoliberal State, and the suppression (violent or otherwise) of militant workers’ and labour movements. This was the time of accelerating commodification of basic goods and services, from food (the right to life) to housing (the right to housing) to medicine (the right to health). Pinochet’s Chilean Constitution might have been an extreme example, but countries worldwide – whether voluntarily or under various sheds of IMF-induced pressure, were following suit.
Here is where I think Nichols’ ideas of recursive dispossession and ascription and alienation provide us with a framework that make both these processes legible in light of one another. To grant a right to housing at a time when housing is entirely commodified or to grant a right to health at a time when global treaties such as TRIPS have locked countries into drug commodification regardless of what their national Constitutions say, appears very much to be akin to recursive dispossession: you grant a right at the point at which, at a structural level, the rights-bearer has no ability to make meaningful use of it.
Understanding socio-economic rights through recursive dispossession allows us to understand, I suggest, the common complaint about how most courts – even the best intentioned and most progressive among them – have managed, at best, a weak enforcement of socio-economic rights. Literature is rife with critiques of what the young Constitutional Court of South Africa did or failed to do in Grootboom and Soobramoney (it is more positive about the more modest orders in Treatment Action Campaign, of course); it is similarly accepted wisdom that the right to housing does not translate into a right to a home, but imposes procedural/substantive obligation of meaningful engagement and/or rehabilitation, especially when the squatting is on private property; and Amy Kapczynski has shown the problems with litigating a right to medicine in the background of the patent regime (the Colombian Constitutional Court’s attempt to take on the healthcare model as a whole, interestingly, recognised the roots of the problem, but by common consensus, was unable to resolve it). These are well-worn critiques – with well-worn responses – but it is recursive dispossession that, I think, takes the extra step and shows us the deep linkages between the ascent of neoliberalism and the accent of socio-economic rights and – thereby – helps to explain that socio-economic rights adjudication will, at the end of the day, throw up only neoliberal-compliant solutions. It cannot be otherwise.
But that also takes us to the second element: ascription and alienation. As Nichols tells us, the issue here is not just about the notorious “juridification of politics,” but something deeper: “… that the nominal expansion of formal, juridical right may not only coincide with but can also facilitate the expansion of new forms of subjection and domination.” [pg. 133] So, it is not only that the right to housing under neoliberalism cannot provide a home to those who need it the most, but also that the right to housing under neoliberalism will conscript these people into the same regimes of property, dispossession, and commodification that are responsible for the plight in the first place. Rights, then (and here I extend Nichols’ argument in a direction that he might not have anticipated), become vehicles of containment and path-dependency: they further entrench and strengthen the legal regimes that are the reason for why we think we need those rights in the first place. As a practicing lawyer, I experienced this first-hand while litigating housing rights, and observing how progressive doctrine only served to embed informal tenants deeper and deeper into the neoliberal logic of commodified housing.
The idea of ascription and alienation helps to address, I think, a point that came up when this book was being discussed in our reading circle. Why can’t we think of socio-economic rights – the argument goes – as an instance of Karl Polanyi’s “double movement”? Polanyi famously argued that the push for marketisation has, historically, been accompanied by a countervailing push for social protection against marketisation (especially once the socially detrimental effects of marketisation become too extreme). If Nichols’ argument is correct, however – and if my extension of it to other rights is plausible – then it is more accurate to think of rights as vehicles of ascription, alienation, and entrenchment (within neoliberal regimes) rather than the countervailing arm of the double-movement. And this is also why, I think, it becomes equally difficult to think of rights-litigation as an instance of a “non-reformist reform”: the more humane administration of capitalism cannot bootstrap itself into a challenge to the social relations of capitalism.
Addendum: What Is To Be Done?
In a recent article, Yochai Benkler notes that “if one is to transform a system whose mainspring is market-dependence for subsistence, then one must pursue institutional transformations oriented toward partial decommodification of those needs for all.” Nichols’s idea of recursive dispossession raises the question of whether it is structurally possible to achieve this through the language of rights.
At the end of all this, then, what follows? Am I asking constitutional lawyers to stop going to court to judicially enforce socio-economic rights? Am I saying that every time you do that, you entrench capitalist social relations and therefore do more harm than good? Not really; the root of the problem lies several levels above an individual rights claim in a specific court in a specific jurisdiction. I do think, however, that it is of importance for constitutional lawyers to turn critical lens back upon the practice that we have been socialised into. Because, as Jeremey Kessler notes:
For at least two reasons, this relative lack of intentionality and consciousness may be functional. First, the relative lack of intentionality and consciousness contributes to the appearance of law’s neutrality vis-à-vis the relevant material conflicts. The appearance of neutrality, in turn, underwrites the sociological legitimacy of the law. Second, were they to recognize them, many legal professionals might be disturbed by the material biases of their own discourse and practice. For example, a passionate labor lawyer is as likely to be hindered as helped by recognizing that the legal form, which treats workers and firms as formally equal legal subjects, is itself a product of the commodification of labor power. Likewise, it does a federal prosecutor little good to recognize that they litigate not on behalf of the public but, ultimately, on behalf of comparatively more powerful class fractions. Some legal professionals might have normative hesitations about these material biases. Others would at least intuit that they benefit from the sociological legitimacy that the appearance of neutrality generates. In either case, legal professionals’ lack of intentionality and consciousness vis-à-vis the material biases of their practice and discourse is useful— to the professionals themselves and, ultimately, to the development of the productive forces. It is these nonintentional and unconscious, yet highly efficacious, features of legal practice and legal discourse that historically have led legal practice and discourse to be understood as ideological.
And this, in turn, matters because, as Benkler trenchantly observes, “law in capitalism legitimates these relations through the social role of the legal profession as a distinct social formation within the professional and managerial class, one that is produced through training and practice-based habituation and asserts specialized knowledge acquired through this socialization process.” The role of the critical lens is to throw sand in the smoothly-turning gears of this “practice-based habituation.” Much like sand in the gears of a bulldozer, its most important function might be to make a machine stop.
Against the Grain 
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