I read Professor Whitman’s opus in view of outlining its contribution to an ongoing inquiry into the enduring legal legacy of colonialism. The author’s thesis is that paradigmatic ownership in the West has gone from a position of “unbounded dominion” over slaves and animals to “lordship” over an enclosed piece of land. This transformation in “the legal imagination” (p 10) has been in the making for at least 2,000 years. Whitman explains that the Roman doctrine of occupatio started as a justification for how things, humans and animals that have never been owned before (res nullius) become property after they are captured during a hunt or a war (pp 19, 80). This Roman law doctrine is inherently connected to the colonial justification for seemingly unowned lands (tierra nullius) (p 121) being acquired by colonists. And why said lands were understood to be unowned in the first place is tied to the place agriculture later took in defining property within Western law (pp 233, 358–67).Footnote ¹ Knowledge of these changes enables an in-depth critique of colonialism and its legacy in jurists’ partial appreciation of what it means to occupy land.Footnote ² There is no question more important for contemporary Canadian property law as cases of Aboriginal title are being negotiated and decided.

The book further tells the story of the rise of dominium—a Roman concept of absolute ownership, including the powers of usus, fructus and abusus. Initially describing the power of a master over a slave, dominium came to qualify the powers of an owner over their land, thus enabling the extractivist mentality involved in modern industrialization (p 380). Whitman explains that private ownership of slaves has been painstakingly abolished—while public slavery remains alive and well in the prison industrial complex (p 382)—not because we are “better people” than the Romans, but because our fundamental understanding of property has changed. Through this shift from dominion over people to dominion over land, dominium—a despotic concept of property that prospered under the Roman Empire (pp 148, 152–53)—became a symbol of the freedom of the individual owner vis-à-vis the state after the French Revolution (pp 138, 368). This transformation occurred at the cost of turning the land itself into a slave, to be “used and destroyed” (p 77) by an owner—be it an individual, a corporation or the state—who feels answerable to no one (p 379).Footnote ³ This narrative enables a critique of how our Western conception of ownership is at the heart of today’s colonialist extraction of natural resources and the destruction of nature.

The relationship between property law and political sovereignty explains the rise of our colonial Western states. As property, conceived primarily as control over people, shifted to control over land, “rulership” over an empire conceived as a network of fortified cities evolved into control over a territory encased in boundaries (p 210). The eighteenth-century colonial assumption that the whole planet is there to be “mapped and divided” among states and private owners (pp 38, 313) arose because of this shift. The notion that land must be owned and divided, Whitman explains, is not a timeless practice carried by the entire history of Western culture or an anthropological fact of human societies, but a contingent, relatively recent idea, which is the product of a slow transformation in our “idioms of power.”Footnote ⁴

Our imaginary of property is still unconsciously transforming and the categories Whitman outlines can be of use in understanding it. The author acknowledges: “[T]oday, people’s fortunes depend at least as much on their pension funds as on their real estate” (p 2). We notice at once the dematerialization of property and the “explosion of the atom of private property”Footnote ⁵—an “atom” we inherited from the Romans—brought about by the division between ownership and control,Footnote ⁶ which Berle and Means observed in shares traded on the stock market. Are we witnessing a new duplex dominium (p 259) in which shareholders enjoy dominium utile—in collecting dividends and profiting from the increase in the value of shares—while dominium directum over the corporation is held by new “feudal lords”? New forms of property do not inherently “free” people, Whitman warns; rather, they enable new forms of subjection. Here, he offers the example of the transition from slavery to sharecropping in the American South (p 286). Our savings, meant to free us from the need to work forever, now “serve” the whim and even extraterrestrial colonial pursuits of an increasingly despotic class of managers. “I declare that this [person] is mine” (the ancient legal procedure described by Whitman (p 109)) takes on a new meaning as managers seek to ever increase their share of control and treat the corporation as their personal slave.Footnote ⁷

Where the decolonial scholar may struggle with the book is its deterministic conclusion. While “we are the subjects of processes of cultural change that extend over thousands of years,” processes that can dwarf “the power of our ambitions for moral [or social] reforms” (p 394), Whitman’s history provides a laboratory full of alternatives to the devastating form of ownership that we know today, such as the “coexistence of multiple” and overlapping “use rights” (pp 41, 67), “non-exclusionary” ownership of land (p 48) involving a “governance strategy” (p 55), “sharing” in the fruits of an activity regardless of who owns them or the means of obtaining them (p 51) and Elinor Ostrom’s “side-by-side existence of private property and communal property” (p 88), to name only a few. Whitman’s gesture of including Roman law within a broader anthropological narrative involving comparisons with the legal customs of Indigenous nations of North America and precolonial African peoples (p 102) is radical and welcome. Those legal traditions did not all evolve to produce the ecological and democratic catastrophes we face. Those alternatives—momentarily overshadowed by centuries of colonialism—exist today and are also the product of centuries of adaptation. Rather than feeling crushed by the weight of a deterministic account of history, can we imagine in our colonial states a ius civile influenced anew by various “local customs” (p 305) understood as laws derived from the land (p 307)? To do so, Whitman’s book is a place to start, as it uniquely identifies the accidents of history that produced the contingent hybrid we have as a concept of property today.