Title by Registration: Instituting Modern Property Law and Creating Racial Value in the Settler Colony
| Date | 01 June 2015 |
| Author | Brenna Bhandar |
| DOI | http://doi.org/10.1111/j.1467-6478.2015.00707.x |
| Published date | 01 June 2015 |
JOURNAL OF LAW AND SOCIETY
VOLUME 42, NUMBER 2, JUNE 2015
ISSN: 0263-323X, pp. 253±82
Title by Registration: Instituting Modern Property Law and
Creating Racial Value in the Settler Colony
Brenna Bhandar*
The transformation in prevailing conceptualizations of property and
the drive to render land as fungible as possible, the desire to com-
moditize land that had been pursued in earnest since the seventeenth
century in England, was realized in the space of the settler colony
decades before it would be implemented in the United Kingdom. The
author explores how the commodity logic of abstraction that subtended
new property logics during this time, reflected in the Torrens system of
title by registration, was accompanied by a racial logic of abstraction
that rendered the land of the Native, or Savage vacant and ripe for
appropriation. By way of conclusion, the author speculates on the ways
in which the imposition of English property law in the settler colony
influenced the development of modern property law in England.
INTRODUCTION
Robert Richard Torrens, the primary supporter and on some accounts,
primary architect of the land registration system that came to be known as
the Torrens system, wrote passionately about the unsuitability of English
land law for the colonies:
Possibly, some . . . may concur with me in regarding it as altogether too
splendid and ingenious a work of art to suit either our means or our
requirements in these colonies; that, like those exquisite carvings in ivory
which we see marshalled in order in some recess or cabinet of a lady's
253
*School of Law, SOAS, University of London, Thornhaugh Street, Russell
Square, London WC1H 0XG, England
bb29@soas.ac.uk
I would like to express my sincere gratitude to Alberto Toscano, Hyo Yoon Kang,
Donatella Alessandrini, Nimer Sultany, Meghan Morris, David Lloyd, participants in the
Knowledge/Value Workshop held at UC Davis, March 2013, and the anonymous
reviewers for their very helpful comments on earlier versions of this article. Any
shortcomings and errors are the sole responsibility of the author.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
boudoir, but never drawn out when the game of chess is really to be played, the
proper place for this `splendid code' is the cabinet of the antiquary, where
those who have leisure and a taste for that sort of thing, may admire this `proof
of the vast powers of the human intellect, however vainly or preposterously
employed' [quoting from Blackstone]. In playing out the game of life in this
work-a-day part of the globe, we require something less costly, something less
artificial, something which we may handle with more freedom and rapidity.
1
In making the case for the adoption of a system of title by registration in the
colony of South Australia, Torrens wrote with near delirium about the
opportunity for property law refor m presented by a place that was
unencumbered by a landed English aristocracy and the remnants of a feudal
property regime. This place was also, in the minds of English colonists, quite
conveniently free of a population with recognizable pre-existing ownership
of the land. The transformation in prevailing conceptualizations of property
and the drive to render land as fungible as possible, the desire to
commoditize land that had been pursued in earnest since the seventeenth
century,
2
could be realized in this vacant land so much more easily than in
England itself. While Australia was a place initially identified as the perfect
host for those elements of British society who were expelled on the basis of
their criminality, the export of the raw materials (such as sheep) that were
required for the maintenance of a pastoralist economy
3
would eventually
give way to a more agriculturally intensive economy. As I explore in this
article, colonial settlement in Australia required a place that was outside of
the space and time of English relations of ownership, where new forms of
land holding could be imposed with relative ease.
* * *
Alain Pottage has argued in meticulous fashion that the system of title by
registration inaugurated with the 1925 Law of Property Act in the United
Kingdom, and subsequent to that, the 1930 Land Registration Rules relating
to conveyancing, embodied a `logic of registration' that replaced the
property logic of contract and conveyance. Registration `superimposed' a
new sequence onto practices of conveyancing, which essentially reordered
primary elements of the old scheme `according to a new grammar of
property'.
4
This new grammar of property gave expression to an increasingly
abstract concept of ownership. Long-held justifications for and practices of
254
1 R.R. Torrens, The South Australian System of Conveyancing by Registration of
Title, with Instructions for the Guidance of Parties dealing, illustrated by Copies of
the Books and Forms in use in the Lands Titles Office (1859) 4.
2 E.P Thompson, Customs in Common (1992); E. Meiksins Wood, Liberty and
Property: A Social History of Western Political Thought from the Renaissance to
Enlightenment (2011).
3 See S. Franklin, Dolly Mixtures: The Remaking of Genealogy (2007) 119.
4 A. Pottage, `The Originality of Registration' (1995) 15 Oxford J. of Legal Studies
371, at 377.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
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