Tracing Social Spaces: Global Perspectives on the History of Land Registration

AutorElisabetta Fiocchi Malaspina
Páginas177-202
TRACING SOCIAL SPACES:
GLOBAL PERSPECTIVES ON THE HISTORY OF LAND REGISTRATION
Elisabetta Fiocchi Malaspina
1. Entangled narrations: international law, national law and colonial law
In recent years, there has been an increasing interest in the history of in-
ternational law by scholars seeking to overcome Eurocentrism and to evolve
towards a truly global perspective. The eld focuses on transfers, networks,
connections and transformations that have occurred in time and within a
global space, as well as on methodology, scrutinising the different possibili-
ties for writing the history of international law.1 At the same time, interest in
questions of colonialism, imperialism and law, in the complex relationship
between international law and empire and in their historical narrative(s) has
grown rapidly.2
The aim of the article is to present some preliminary considerations con-
cerning an ongoing project, which investigates the mechanisms of land law
and land register systems in African colonial territories between the 19th and
20th centuries, focusing on the relationships between international and do-
mestic laws in the imperial expansion and colonial periods.
It proposes to examine the legal mechanisms of colonial expansion and
to outline the discourses between the colonial powers and their implications
on the legal concepts of land ownership in both a colonial and a European
context. Case studies will provide detailed accounts on different land register
systems as examples of how larger frameworks of these juridical practices
evolved. The article will show that the discourses between colonial powers
and the adaptation of European legal concepts regarding property and land
registration in the colonies facilitated the expansion and consolidation of co-
lonial empires.
1 See Fassbender-Peters 2012, p. 1-24; Obregón Tarazona 2015, p. 95-112; Kosken-
niemi 2017, p. 381-397. On methology see: Koskenniemi 2013, p. 215-240; Koskenniemi
2014, p. 119-139; Koskenniemi 2016a, p. 104-112. See also: Orford 2013a, 97-117; Orford
2013b, p. 166-197; Orford 2015, p. 369-385; Hunter 2016, 1-32.
2 Rech 2017, 57-80; Koskenniemi 2016b, p. 248-277. See also: Pitts 2018; Starski-Käm-
merer, 2017, p. 50-69; Anghie 2005.
177
ELISABETTA FIOCCHI MALASPINA
178
Scholars from different disciplines have pointed out that the African col-
onies were used as a laboratory,3 as a living laboratory4 and as a space of
transfer and comparison with the European context.5 The duality of space
constructed around the colonies and the European states raises important
questions concerning land ownership and land register systems. In this per-
spective, the aim is to investigate the complex relationships between the colo-
nies and the European states and how these impacted the establishment of
register systems; particularly, which register systems managed to prevail and
what were the relevant factors in their survival, i.e. which modalities were
employed where the customary law of the local population met European
concepts of land law and land tenure.
The key concept for trying to explain not only the political and social
frameworks but also the legal dynamics that pertained between European
and colonial areas is that of “internationalisation”. As it expanded during the
long 19th century, internationalisation was certainly favoured by the emer-
gence of national legal language, which were the founding elements of an in-
ternational legal language and at the same time complementary to it. In the
19th century, in fact, the idea of ‘nation’ became strong and reached its acme
as the liberal spirit continued to blow like a wind through Europe and across
the Atlantic, transmuting and forming itself into many different political, le-
gal, social, economic and scientic realities. The rise of national identities was
marked by revolutionary movements, spreading rapidly, as a new geopolitical
map of the world appeared with emerging territorial states as central actors.6
Thus, the delimitation of borders and territorial independence coincided
in the 19th century with the afrmation of the so-called principle of nationality
and the principle of non-intervention, developed and perfected by diplomats,
politicians, lawyers and jurists. These professionals, however, were simulta-
neously engaged in the legal construction of the colonial discourse and in the
legitimisation of European expansion, which was becoming almost a constit-
uent element of most European nations.
Throughout a period of intense rivalries both in Europe and in the colonial
environment, we perceive a sort of cooperation and consultation in the sec-
ond part of the 19th century.
3 De L’Estoile 2004.
4 Tilley 2011.
5 Nuzzo 2006, p. 52-58; Nuzzo 2005, p. 463-508.
6 Fiocchi 2019.

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