Between the law and the actual situation: Failure as property formation in French colonial Indochina

Introduction

On 29 August 1921, the Governor-General in Phnom Penh received a confidential telegram from the colonial office in Paris relaying an urgent inquiry on the capacity of Chinese, Japanese and ‘other people of color’ (outres gens de couleur) to take ownership of parcels of land in Indochina comprising what is now Cambodia, Laos, and Vietnam. ¹ The telegram emphasized that this was ‘a complex question of great political interest’ that required precise documentation regarding ‘the law’ and ‘the actual situation if it takes place’ (situation de droit, s’il y a lieu situation de fait). This message precipitated a flurry of memos, reports, studies, and discussions across what the original telegraph referred to as ‘French Indochina’—bracketing the question of just how French it actually was. These communications referenced not just local property formations but also the malleable and at times conflated definitions of race, nationality, and territory that the French colonial apparatus used to secure the privileges of property. All of this correspondence was about more than deciphering the legality of a subset of individual land claims or debating the broader merits of a private property regime. It was rather about managing the incoherence of racial categories, and about French attempts—many of them outright failures—to extend the privileges of property so as to shore up colonial power in Cambodia.

At issue was a French colonial racial schema that sought to consolidate racial identities out of complex and often fluid ethnic habits and histories—among which property relations were a particularly important index—and arrange them along a civilizational hierarchy with white Europeans at its apex. The question, then, was where Chinese, Japanese, and ‘other people of color’—those groups who were not specifically considered ‘indigenous’ to the colonial territory yet were not white Europeans either—fit, and how to keep everyone in their designated place when it came to property. Also at issue was Cambodia’s unwieldy property regime, composed of two coexisting land systems—possession by use and ownership by title—and governed through a bricolage of Cambodian customary and French Civil law. This regime was further bifurcated geographically and administratively in accordance with the differences between rural and urban bureaucracies of land management, and differentially applied according to racialized categories of ethnic difference.

Beginning in the late nineteenth century, the French initiated a series of attempts to institute a private property regime that could open up Cambodian land to white European settlement and capital investment as well as protect indigenous Khmers, Cambodia’s ethnic majority, from commercial exploitation by other ethnic groups, namely Chinese merchants and landholders. This regime required a liberal concept of private property as absolute and exclusive but one calibrated according to the shifting dictates and hierarchies of race. As such, racial categories and property norms have been closely and complexly imbricated in Cambodia since the nineteenth century—a nexus that this article traces from its colonial origins through its contemporary durabilities.

To manage the unwieldy terrain between a universalized liberal construction of ‘the law’ and the ethnographic complexity of the ‘actual situation’, the colonial administrators utilized what one bureaucrat euphemistically referred to as ‘“colonial” modes of application’, which meant that application of laws was sporadic and ad hoc rather than uniform and systemic. In short, far from attempting to unify the two land regimes or reconciling competing eligibility requirements, French colonial authorities sought to stretch this ambiguity across colonial space by tying and retying ethnicity, race, nationality, and law into complex and often contradictory property formations. Paradoxically, the regime that emerged—based on unstable racialized categories organized through a plural legal terrain and moderated by discretionary application of colonial laws—also opened up a space of maneuver successfully exploited by colonial subjects. It is in this context that ethnic Chinese property claims in particular caused the colonial administration considerable difficulties. The Chinese population, itself an internally differentiated totality, was long established in Cambodia and dominated urban property, commerce, and trade. More ‘settled’ and integrated than the French population who came to Indochina, Chinese property interests threatened both a hierarchy of race and French efforts to displace them so as to advance their own efforts to form a monopoly over the economy.

Colonial failure as property formation indexes, first, how the racialized categories of ethnic difference that underpinned the rationalities of French colonial rule simultaneously undermined French colonial programs to alienate land. Second, it positions the failure to reconcile a confusing array of property laws and logics as integral to maintaining paternalistic colonial (and post-colonial) authority to sort racialized populations via the privilege of property. Through the lens of French attempts to control Chinese property claims, we show how the French colonial property regime, supposedly based on universal liberal norms, was in fact also deeply racialized, requiring it to be managed in a highly localized and contingent manner, in accordance with each territory’s existing set of ethnic property relations—or the practical racial hierarchy of colonialism would unravel.

The space of colonial maneuver that lies between the law and the actual situation provides this essay’s methodological as well as analytic entry point. In what follows, by sifting through the correspondence appended to land reforms, laws, and decrees preserved at the Archives nationales d'outre-mer (ANOM) in Aix-en-Provence, France, we trace the decomposition and re-composition of the racialized categories of colonial rule as they erupted within and were reconfigured through property regulations. ² Correspondence in this context puts ethnographic texture on bureaucratic records, revealing anxieties, desires, and prevailing narratives—elements often expunged from examinations of legal documents alone (Stoler, 2008). Analyzing notes, drafts, requests, reports, and other such bureaucratic discussions rather than the finished legal artifact muddies ‘the law’ with ‘the actual situation’ of its making and interpretation. The tension between what the French sought to legislate and how that legislation was enacted in practice became a tenacious gap, which endures in the contemporary property regime and its configuration that ties nationality to ownership, as we discuss in the conclusion.

We center the French Protectorate of Cambodia (1863–1954) in a discussion of race and property precisely because French colonial bureaucrats and scholars considered Cambodia (as well as Laos) to be a ‘hinterland’ of Vietnam (Willmott, 1967). As Willmott (1967) points out, this position is reproduced in scholarship, as most work on French colonial Indochina continues to focus primarily on the territories of contemporary Vietnam. Nonetheless, as a ‘hinterland’, discursively and economically figured as peripheral if not open and empty, Cambodia was seen as an appropriate, even an ideal, experimental space for colonial interventions around property. ³ Colonial categories moreover have durable afterlives that can generate their own materialities in the social and legal structures that remain even after the formal end of colonialism (Stoler, 2016). Centering Cambodia in the analysis of the French program of property formation thus works to unsettle rather than adopt the colonizing perspective, even while we rely on the colonial archive for source materials.

Cambodia was a ‘non-settler’ colony, meaning that only a relatively small population of Europeans took up residence there compared with the mass migrations of Europeans that populated settler colonies. And yet, as Penny Edwards (2003) argues, the cleaving of ‘settler’ colonialism from ‘non-settler’ colonialism in contemporary scholarship adopts and may even reproduce ‘colonial mappings’ of the world. Indeed, as Edwards notes, the very term ‘settler’ upon which the distinction rests only gained conceptual solidity in post-colonial scholarship (Edwards, 2003). The vernacular term for ‘settler’ used in French Indochina was colon, which was variously used to mean white and European, and sometimes ‘entrepreneur’, but always opposed to itinerant natives (Edwards, 2003). Unsettling the geographic and social coordinates of ‘settler’ in colonial historiography reminds us that ‘whiteness’ is the paramount racialized category of colonial making, intensively cultivated through property interests and as a property interest (Harris, 1993; Stoler, 1989). While the identity position of colon and property share ‘a common premise—a conceptual nucleus—of a right to exclude’ (Harris, 1993: 1714), property and colon-identity further share an ontological nucleus of race and its instabilities, particularly in the colonial context discussed here.

In Cambodia, the law and its pluralities have been integral to the making of land into a commodity from the colonial period to the present (Nam, 2020). By rooting legal pluralism in what Brenna Bhandar names as ‘racial regimes of ownership’ (2018), we document how the laws and decrees aimed at facilitating the alienation of land in Cambodia were explicitly designed to manage race, doing so by continuously sorting populations in terms of location, access, and privilege. These practices were thus exemplary of how ‘modern concepts of race and modern laws of property share conceptual logics and are articulated in conjunction with one another’ (Bhandar, 2018: 8). However, in French Indochina—a context in which racial identifications were always fluid and often hybrid (Edwards, 2007; Müller, 2006)—the racialized categories of ethnic difference were highly unstable. Under French colonial rule, ethnic difference was codified in racial terms—a process that took place, in important ways, through the system of property.

Prior to French incursion, race and ethnicity were fluid categories that denoted one’s cultural habits rather than any fixed attributes, let alone one’s identity (Edwards, 2007). For French bureaucrats and scholars who arrived later, the property norms of different ethnic groups were seen as indicative of different levels of civilization and thus reflective of differing racial essences. Abstract conceptions of property and rights required ‘attribution of racial difference’ as a system of ‘normative categories of governance under the rubrics of liberty and sovereignty’ (Lowe, 2015: 7) that were also geographical categories attached to different settlement norms and cultural landscapes. Thus, one official lamented in a 1915 report the perceived malaise of the Khmer: ‘it is clear that the Khmer are a particularly lazy race of people and can only advance down the path of civilization slowly’. Citing the customary structure of landholding in Khmer villages, the official—Auguste Boudillon, Indochina’s general inspector for land—declared the Khmer an inferior ‘race’, asserting, ‘It is once again evident that the Khmer has only achieved a degree of civilization inferior to that which we found in the Annamite [in Vietnam]’ (Boudillon, 1915). Accordingly, Boudillon (1915) recommended a program of civilizational uplift via institutionalizing liberal private property norms throughout Cambodia.

Yet, simultaneous to these prescriptions, French administrators, particularly in urban areas, sought to limit and frustrate Annamite and especially Chinese private property claims in the protectorate. The anxious management of racialized categories of ethnic difference via property law required continuous elaboration through paternalistic interventions designed to protect ‘native’ and especially French colon propertied interests. Here, then, the liberal ‘minimalism’ of private property was ‘qualified if not betrayed by the density of the social norms [read: racialized norms] required to support its apparent naturalism’ (Mehta, 2018: 75). The cultural politics of property and economic properties of racial and civilizational hierarchies are crystallized in the anxious policing of Cambodia’s ‘racial regimes of ownership’, which, far from settled, required ‘continual renewal and reinstantiation to prevail over other ways of being and living’ (Bhandar, 2018: 9). Understood thus, colonial failures in property reforms were not solely due to the lack of a centralized bureaucracy to regulate property or the absence of capitalism that could abstract and commodify it. Instead, they reflect the co-constitutive yet contradictory entanglement of colonial projects of capitalist accumulation and racial regulation that came together or fell apart in different moments of the law and its applications. Analyzing these colonial failures illuminates the durable entanglements of race and racialization with liberal property formation and the institutional structures that remain after the end of colonialism.

Colonial law and the post-colonial situation

In 1921, the year the colonial government in Phnom Penh received the memo inquiring into ‘The capacity of foreigners of color to obtain land in Indochina’, the population of Cambodia was small, with approximately 2.4 million residents. ⁴ The geographic distribution of the population throughout the territory was closely correlated to ethnicity: the Khmer population (2,120,000) was predominantly rural while the Vietnamese population (140,000) were mostly mobile, living on waterways and following seasonal fishing rhythms. ⁵ Cambodia’s Chinese population (91,000) was primarily concentrated in Phnom Penh and other cities and towns. So too were French colons. In 1924, Phnom Penh had a population of 77,000 residents, of whom a third were Chinese and a quarter Vietnamese. Only 1145 were French (Slocomb, 2010: 45). The Chinese not only outnumbered the French in the city by an order of magnitude, but they were also well established as urban land holders and dominated both commerce and trade in Phnom Penh and other urban centers in Cambodia and beyond (Brocheux and Hémery, 2011; Müller, 2006; Slocomb, 2010). ⁶

Legislating the categories of ethnicity and race was impossible, as the categories themselves were highly elastic, impossible to bracket, and easy to elide. The ways these categories were applied were also ad hoc, providing regular opportunities for maneuver. The shifting status of the ethnic Chinese across the nineteenth and twentieth centuries is an especially vivid example of this form of colonial failure. Unlike other foreign residents in Cambodia, ethnic Chinese filled positions of the royal administration (Willmott, 1966) and, later, were crucial to the operation of the French colonial state (Müller, 2006). In pre-colonial Cambodia, Chinese residents who adopted Khmer customs and paid tribute to the King enjoyed the same rights as Khmer citizens and could ‘own’ property (always with deference to the King, who could expropriate it at any time, at least until 1904) in the same way and with the same restrictions faced by the native population. However, under French rule, Chinese—no matter their custom or the number of years in the country—were recategorized as ‘Asian aliens’ (Asiatiques étrangers) and thus could be excluded from the rights of property ownership. ⁷ Drawing on the colonial legal scholar Henry Solus (1927), Christopher Goscha (2012: 100) notes that ‘the French categorization of the “Chinese” as “Asiatiques étrangers” was based on “race” rather than on French notions of jus solis’ or citizenship by birthright in order to maintain a separation of races and institutional barriers to assimilation. These distinctions would sow the seeds of inter-ethnic tension and fuel subsequent debates about whether territory or race was the basis of belonging (Goscha, 2012) with particularly dire consequences in Cambodia in the decades after the country’s independence.

The colonial government regularly sought to issue property laws aimed at excluding the Chinese, but its own regulations and categories of legal personhood were at odds with its efforts to bureaucratically manage race. As Nicolas (1934) notes, only French citizens, subjects, and protégés could own freeholds, and they could not sell to aliens without government authorization. The size of Chinese property holdings in Indochina provides of a sense of what was driving French anxieties. Nicolas (1934) estimates that the Chinese owned over 100,000 hectares of land in Indochina. The distinction between these two ways of categorizing the Chinese—as Asian aliens (and thus outside of the Protectorate), and as actual residents internal to the territory who could indeed claim property rights—would get further muddled in other legislation that conflated race and ethnicity with nationality, and nationality with territory.

Whereas a 1919 ordinance gave Chinese nationals the right to buy Cambodian land, in 1921 Cambodia’s Résident-Supérieur wrote to the Governor of Indochina suggesting that France adopt Dutch policy in Java prohibiting the sale of urban property to Chinese. ⁸ The decree that limited ownership of rural land to French citizens, companies, subjects, and protégés was issued three years later, in 1924. In 1929, Cambodia’s monarch, King Monivong, extended a prohibition by royal ordinance, as a means of further restricting Chinese property ownership. In these legal machinations we recognize the French colonial state’s attempts to discipline the ‘actual situation’ of Chinese dominance in the urban sector via the privilege of property to better conform with ‘the law’. But this disjuncture between the law and the situation on the ground allows scholars evaluating these laws to hold seemingly contradictory positions on the relationship between ownership and race. For instance, Margaret Slocomb notes that ‘The Chinese, perhaps the only section of the society with both the means and the motivation to acquire private property, were prevented legally from doing so by French laws’ (Slocomb, 2010: 52). In contrast, Willmott (1966) asserts that French legislation did not prevent the Chinese from property ownership, as reflected in records of large landholdings. These divergent scholarly interpretations are themselves the afterlife of an unwieldy and contradictory French colonial racialized property regime.

In Phnom Penh, the colonial government sought to smooth the frictions that emerged from the ‘actual situation’ of Chinese economic dominance by freeing up vast new areas through the alienation of land while simultaneously excluding the Chinese population from claiming those lands. In effect, the introduction of a liberal private property regime masked the key goal of creating a protected property preserve for French colons and for the colonial administration. Yet this original intent is made abundantly clear in the following note appended to the draft plan for the decree on the alienation of land in Cambodia sent from the Resident General of Cambodia to the Governor of Indochina in July 1884:

I have the honor to submit to you the draft convention which I have prepared for the alienation of the lands. This first act, which will have to be completed later, is first and foremost a consecration of principle which will give prompt satisfaction to European settlers wishing to settle in Cambodia. ⁹

The effort to create private property in the context of Cambodia’s existing customary land regime was itself an incremental and iterative process. Two of the key principles in the customary land tenure system were the right of useful possession, governed by taxes on yield rather than land size (the former recognizes seasonal variation whereas the latter is fixed), and the social recognition of an occupant’s land claim by his neighbors. Possession was also limited: land left fallow for five years reverted to the status of ‘public’ lands, which could then be redistributed by local authorities. Whereas the French Civil Code, adopted by the Protectorate in 1920, made no mention of such time-specific conditions, it did in fact introduce a quite different notion of property—as absolute and exclusive—based on the principles of the Napoleonic code from which it was derived (Carrier, 2009; Nam, 2020). While colonial authorities attempted to convert temporary occupation to title deeds by mandating a land registry, in actuality both possession and ownership were operational, yielding a confusing and often contradictory bricolage of claims to space, each rooted in a different logic of property and mode of legitimation (Carrier, 2009: 22–24). In the context of French Cambodia’s civil law tradition, wherein ‘legislation, and its never-ending churn, is the key factor’ (Nam, 2020: 365), contradictions in the land regime were bridged through the continuing issuance of racialized property laws, ordinances, and decrees. The French sought to control racialized groups through property and shape the property regime through racialized exclusion.

This palimpsest of racialized property law forms the infrastructure and archive of Cambodia’s contemporary land regime. In present-day post-colonial Cambodia, the maintenance of a plural land regime continues to inflect the category of propertied citizenship through incoherent categories of race, nationality, and privilege. Cambodia’s contemporary land regime is composed of property forms, laws, and decrees derived from an amalgamation of French, Japanese, American, and Vietnamese sources. These operate according to divergent and frequently contradictory property logics (Hap, 2010; Nam, 2020). Indeed, one senior land official explained that while the 2001 land law pursued a land registry structured by title, it did not replace the 1992 Land Law (which enshrined possession as a regime of property) but instead sat alongside it. ¹² That is, the plural land regime, with its different systems and modalities of documentation and governance, still exists today (Beban, 2021). Another senior official described how Cambodia’s laws were in many cases written by foreign legal experts in their own native language, usually French or English or even Japanese, and only then translated into Khmer. ¹³ For example, the 1992 Law was originally written in French, and yet possession and ownership—distinct legal categories—were used interchangeably throughout the English version of the law (Guillou, 2006; Russell, 1997). More significantly perhaps, the practical differences between ownership (kamaset) and possession (phokeak) were left undefined in that law and carried over into subsequent legislation. Indeed, law is a composite, in which, as Sally Falk Moore (1978: 9) describes, an ‘accretion of many such responses over time makes for a composite, unplanned total result’. Meanwhile, contemporary legal fictions, such as landholding companies, operate at the interstices of Cambodia’s legal regime, using regulatory flexibility and bureaucratic strategies to enable sizable foreign ownership of urban assets despite formal prohibition against foreigners owning property in Phnom Penh (Nam, 2020).

Legal scholars Trzcinski and Upham (2014) decry Cambodia’s contemporary state of dueling land laws, attributing it to the ‘top-down’ nature of foreign intervention in Cambodia’s land sector. Reserving their strongest critique for the ‘bright-line fever’ of the World Bank–supported system of land registration by title, they write, ‘In a process remarkably similar to the creation of colonial legal regimes, complex localized patterns of usage are simplified into something akin to the concept of ownership imagined by Western legal systems since the English Enclosure Movement’ (Trzcinski and Upham, 2014: 26). Indeed, Japanese legal experts working with Ministry of Justice officials to revise the Cambodian Civil Code sought to retain a balance between a system of ownership and a system of possession and customary use. Ultimately, the Civil Code had to be amended to abide by the colonial principles of absolute and exclusive ownership mandated by World Bank reforms (Kaneko, 2010). While acknowledging the importance of Trzcinski and Upham’s insight on the consolidating intent of land registration, we argue that it is not simplification as much as the maintenance of multiple, contradictory systems of ownership and the continuation of racially inflected discretionary ‘modalities of application’ that is the sine qua non of Cambodia’s property regime.

However, land is not merely an economic asset or legal category. Land is also a prime political asset utilized by the ruling regime to secure political authority and cement patron-client relations (Collins, 2016; Un and So, 2011). Bhandar (2016) argues that the ‘recombinant’ regimes of ownership in the settler-colonial context continue to enable state power to draw on the logics of possession as well as those of ownership to dispossess racialized populations. Similarly, Cambodia’s plural land regime creates significant room for political maneuver for state authorities in the post-colony.

Property as civilizational index

For French colonizers, private property relations were both an input and an output of racialization. Those whom colonial administrators characterized as ‘Annamite’, ‘Chinese’, or ‘a foreigner of color’ differed greatly across the variegated ethnic, political, cultural, and social spaces of French Indochina as well as across the French empire writ large. For example, in some colonial correspondences, such as the telegram referenced in the introduction, ‘Annamite’ was used as a composite category encompassing ethnic Kinh, Khmer, and Chinese. While, in other colonial reports, all of French Indochina is divided into two racialized categories: the Annamites and Chinese who dominate in Cochinchina, Annam, and Tonkin, and the Khmer who reside in Cambodia and, to a lesser extent, Laos. French colonial land reform repeatedly ran aground on the incoherence and multiplicities of colonial categories of racialized difference. Rather than maintain a separation between the racial logics of colonialism and the capitalist logics of property formation, these logics were always necessarily co-constitutive and evident in the overwrought efforts by the French to legislate property through race and race through property.

Cambodia, then, was a node in the imperial project of managing race through property and property through race, linking it to land regimes in French colonial Africa and in British and Dutch colonies in other parts of the world. Cheryl Harris and Brenna Bhandar, among others, have powerfully explicated this nexus of property and race in the settler colonial contexts of the US, Australia, Canada, and Palestine-Israel where property was foundational in governing land (specifically through dispossession) and personhood. Central to Harris’s foundational formulation of ‘whiteness as property’ is ‘the interaction between conceptions of race and property that played a critical role in establishing and maintaining racial and economic subordination’ (1993: 1716, emphasis in original). In the context of a different white supremacist imaginary—French colonial Indochina—in which racialization was based on an imagined civilizational hierarchy of ethnic groups rather than on the fetishized biological marker of blood-quantum, property relations were a similarly powerful marker of an indigenous group’s ‘place’ in the colonial order of things. A lack of private property norms (e.g., bureaucratic inscription, standards around kinship and inheritance, fixed boundaries, absolute ownership) among ethnic Khmer was equated with low civilizational status; this status was reflected in a low population density, which, in turn, failed to spur private property norms—so the circular racist logic went (Gourou, 1953). To interrupt this ostensible malicious cycle, the colonial state apparatus sought to force land privatization, thus ensuring forward momentum in the civilizational process (while also, of course, serving French commercial interests). In this schema, civilizational essence took on racialized properties. The fallacy of civilizational transfer along ethnic lines persisted as imperial common sense, such that in 1953 eminent French geographer Pierre Gourou could still isolate certain social, economic and cultural practices of the Vietnamese (whom the French deemed superior to the Khmer) and attribute their origins to elsewhere—namely, China (1953: 101). In such orientalist overtures we see a convenient conflation between race, nationality, and culture that leaves unspoken the valorization of these very traits by virtue of their proximity to whiteness.

Given that Cambodia’s ‘emptiness’ was its great appeal to colonial land administrators, it is a particular irony that land access and abundance were the most significant hurdles to colonial appropriation of territory in rural Cambodia. A 1904 report on the general program of public works for Cambodia opens with the following lament:

It is known, moreover, that there is no cadastre, and that there is no Dia Bo registration [land register] as in Cochin China [in present-day Vietnam], that the soil belongs to the king not as a personal domain but as a representation of State ownership …. The first comer grabs a plot with the embarrassment of choice provided that it is not actually occupied by a neighbor. ¹⁴

Cambodia was also a failure in terms of French goals of economic development. Though it was often referred to as the ‘pearl of the French empire’, and its architectural ruins and artisanal handicrafts featured prominently in colonial exhibitions, Cambodia was a ‘disappointment par excellence for colonial enterprise’ (Brocheux and Hémery, 2011: 118). Despite early optimism and investment, the French were not able to effectively intervene in the economic or commercial development of the territory. The transboundary Mekong River, which cuts through Phnom Penh, failed to offer a navigable channel that could reach China (Slocomb, 2010: 37) and the port of Phnom Penh was never developed into Saigon’s ‘hinterland twin’ (Brocheux and Hémery, 2011: 119), meaning that Cambodia remained a colonial economy with its raw materials exported to Saigon and other parts of the region only to be imported back as finished products. To what forces can we attribute such failures? For frustrated French colonial authorities, the primary barrier to growth was the lack of funds: ‘colonization must not cost France a thing, which implied resorting largely to an “inexpensive” mode of domination—the protectorate’ (Brocheux and Hémery, 2009: 70–71). But with time, Cambodia became an efficient revenue-making machine (Chandler, 1993: 148). Once again, bureaucratic standardization and a land registration system modeled after those implemented in French colonies in Africa were proposed as solutions to convince the indigenous population of the ‘extent and variety of benefits that can be derived from private land ownership’ (Boudillon, 1915: 298). The Torrens system, in which the registration of title on the cadastre is the basis of ownership and its benefits and which was used by the English in Australia, was advocated by French reform groups in the 1910s and the 1920s and implemented in the French colonies of Morocco and Madagascar (Rabinow, 1989). In 1925, all of France’s Indochinese colonies officially adopted the Torrens system, yet the majority of rural Cambodia remained untitled in the subsequent decade (Morizon, 1934).

The colonial civilizational hierarchy that emerged in Cambodia from the non-coherence of race and nationality contained fundamental contradictions. The French perceived ethnic Chinese as part of a superior civilization relative to other racialized groups in Indochina, in part because every ethnic Chinese resident was organized into a system of indirect rule known as congregations. Congregations had multiple functions, including keeping a detailed registry of its members’ land ownership and tax liability (Willmott, 1967: 62). In other words, property relations and bureaucratic forms, in part, valorized the position of ethnic Chinese in the colonial hierarchy of civilization. However, the French also saw the Chinese as fundamentally ‘foreign’ to the territory and thus suspect. Their otherness was a racialized identity that became confusing because race was framed as nationality. Thus, the Chinese were considered Asiatiques étrangers, whereas the Japanese were considered Asiatiques assimilés (and therefore eligible to buy Cambodian land). The Japanese could be assimilated precisely because they weren’t already in Cambodia (as the Chinese were) and could thus be incorporated in a way that didn’t undermine the colonial racialized property hierarchy. This meant that the Chinese, though long settled in the territory, were more ‘foreign’ than the Japanese due to race.

For colonial administrators, these same property norms marked ethnic Chinese as a potential threat to the European population who often found themselves at a disadvantage vis-à-vis Chinese entrepreneurs and traders. ¹⁵ Chinese dominance in the ‘wrong place’ (i.e., urban Cambodia) threatened to upset the twin pillars of French paternalistic rule: civilizational hierarchy with the French at the top and a mandate to ‘protect’ the vulnerable Khmer from dispossession (cf. Li, 2010).

In October 1921, two months after the telegram requesting information on ‘the law and the actual situation’, a follow-up telegram from the metropole was circulated again among colonial administrators in Indochina requesting detailed reports on Chinese property holdings from each colonial outpost. ¹⁶ That telegram ended on a cautionary note: ‘it is certain that here again precautions will have to be taken to prevent the French society from being a façade masking exclusively foreign capital’. An appended report further directed each territory to look into ‘what measure can be taken to prevent real estate from being taken over by foreigners in Indochina’, and suggested that ‘in order to prevent the acquisition of immovable property especially by the Chinese the system of prior authorization could be adopted’.

In response to this telegram, some colonial administrators provided detailed enumeration of the Chinese diaspora population, while others limited their study to the resident foreign-born Chinese population. A wry response from the French territory of Kouangtcheouwan (located along the southern coast of China) informed the metropolitan office that ‘all land is owned by the Chinese’. In contrast, the Hanoi office responded in a pragmatic vein: ‘The Chinese are owners of many properties in Tonkin and even if this right would be denied, we would find ourselves in the presence of an acquired situation sometimes dating back several generations against which I do not clearly see the possibility to intervene effectively’. In other words, any new law designed to limit Chinese property claims in Tonkin would only highlight the relative insignificance of French rule in relation to extant historic geographies of power and property in the region.

These colonial correspondences demonstrate the conundrum (and considerable anxiety) that ethnic Chinese property holdings posed for the French colonial state. While the French celebrated private property relations—such as among ethnic Chinese congregations—as legible and civilized, these same practices caused the colonial apparatus real problems in terms of French paternalistic rule—particularly in urban areas. Referring to the ‘stranglehold’ that the Chinese population had on urban property as of 1921, a French official lamented: ‘The result has been the inability today of the French elements to obtain housing. The crisis is not only in Phnom Penh, but in all the major cities of Indochina’. ¹⁷

Reading across the various reports and draft proposals preparing the way for the commodification and alienation of land discussed in this section makes evident that the economic goal of making private property was always conditioned by the dual paternalistic and racist imperatives of the colonial state. These included the protection of lands for French administration and French colons in urban areas and the freeing of lands for property in rural areas. French colonial efforts to implement in Cambodia ‘racial regimes of ownership’ from elsewhere repeatedly failed because, while racial conditions of settlement and ownership were integral to the making of the colonial property regimes writ large (Bhandar, 2018), very specific racialized categories of ethnic difference were imperative to maintaining paternalistic power in diverse colonial settings.

‘“Colonial” modalities of application’

The colonial administrators sought to manage the ongoing incoherence of their own categories through a flexible set of laws that could be drawn upon depending on the interests at hand. In October 1923, the president of the French National Committee of the International Chamber of Commerce wrote to officials stationed at all colonial outposts to assure them that the proposed legislation prohibiting foreigners from obtaining property affirmed rather than foreclosed discretionary authority in the colonies: ‘Indeed, the legislative project in question provides that specific decrees will regulate the “colonial” modalities of application’.

What the committee president here describes as colonial modalities of application refers to the fact that colonial administrators were able to exercise a significant degree of discretion in the way they applied racialized property regulations. Such forms of discretion were essential tools for balancing the twin but oftentimes opposed imperatives of economic development (highly dependent on Chinese syndicates, capitalists, and traders) and paternalistic development (which relied on the claim of colonial ‘protection’ of particular areas and domains for the French colons as well for the native Khmer population.) It is this discretionary approach that opened up a space for Chinese claims to the colon position: figuring themselves as civilizing influences on the native population helped Chinese prospective property owners to take advantage of the discretion that colonial administrators exercised.

The most extensive application for a property concession in the archival record, in terms of both the size of the land requested and the length of the request, is from Wang Tai, the operating name of the Cantonese-born Cheung Ah Lum; it was submitted in 1884, a full two months before the law of concessions was ratified. ¹⁸ By the time of his petition, Wang Tai was well established in Saigon and set his eyes on expanding his syndicate to become ‘the most influential’ businessman in Phnom Penh (Cooke, 2007; Müller, 2006). Like other traders, Wang Tai had interests in construction and real estate as well as control over lucrative consumer goods moving in and out of Cambodia. As Sasges (2015) and Cooke (2007) relate in their descriptions of the breadth of his economic interests and his capacities as a subcontractor for both the state and the Cambodian crown, Wang Tai built his empire on the rice trade, which allowed him to expand into real estate and to secure monopoly rights over the alcohol and opium trades. His syndicate controlled what was known as the opium farm in Cochinchina between 1864 and 1867 and later the Cambodia farm from 1887 to 1889 (Sasges, 2015: 1495). ‘Revenue farms’ were important economic institutions across Southeast Asia in which authorities subcontracted out (‘farmed’ out) rights to private intermediaries to collect taxes or provision goods over a period of time in return for a set price paid in advance (Butcher and Dick, 1993). The most important farms, essentially monopolies, were in opium, salt, and alcohol.

Wang Tai expressed his wish to purchase all available land in the place called Pointe de la Douane (today the peninsula of Chrouy Changvar in northeast Phnom Penh, which spans the other side of the riverfront). This was around the time when French authorities and Chinese traders recognized that rebuilding Phnom Penh in concrete following a major fire was important for controlling the city’s real estate market (Müller, 2006: 65). A note in the file from the Colonial General calls this petition ‘singular’ and ‘worthy of consideration’, noting, however, that any decision would have to wait until after the ratification of the property law. In this petition, Wang Tai sought to articulate his closeness to the French colon ideal, using the idioms of urban development, empire building, and the civilizing mission. Property plays a clear role in his narrative of self-fashioning as a civilizing colon; he begins his missive with the statement, ‘It is no longer a foreigner who comes before you to implore your protection’. In so doing, Wang Tai refuses the positionality of outsider (Asiatique étranger), instead claiming the privilege of an agent of empire.

Wang Tai’s petition reads as an epic narrative of private individual prowess and property acumen as the driving forces in settling colonial Saigon. Written in the third person (a choice of perspective that further affiliates the narrative with the epic genre), the petition tells the story of Wang Tai as heroic agent of French colonization. The reader learns that Wang Tai was one of the first Chinese to arrive in Cochinchina, with the narrative describing how ‘he took part in the expedition and the taking of all our possessions’ (emphasis added). The next section details his moral and cultural habits, which similarly echo colonial categories of civilization:

Wang [Tai] was at that time the only one to be trusted, the only one who possessed a certain education, the only one familiar with the habits and customs of the Europeans, the only one passionately fond of France and the French.

Discursively consistent with the note accompanying the ‘draft plan for the alienation of land in Cambodia’ detailed earlier, Wang Tai’s petition deliberately conjoins the insalubrious environs of pre-colonial Saigon with an uncivilized ‘native milieu’. ‘As you enter Canton Street where there was not even a single hut, filled with puddles, in a short time, as if by magic, it had become one of the most beautiful neighborhoods in the city of Saigon. Wang Tai had built the finest dwellings, while the administration made the roads of the footpaths’. Here he is making the argument that he has worked hand in hand with colonial reformers to transform the city from a native morass into an elevated built environment. ‘He was the first to teach the inhabitants of Cholon [Saigon’s Chinatown] to build, [and] he also installed there several brick makers working under the supervision of European mechanics’. The petition continues at length in much the same tone. In his conclusion, he looks west into the newly ‘opened’ lands of Cambodia.

All this work [that Wang Tai has done] without much self-interest but with a lot of passion for the happiness of the colony. Animated with the same feelings toward Cambodia which thanks to our Governor became a French colony, he desires a large expanse of territory at the point of the customs [office] to form first a city of craftsmen.

Wang Tai operated in the space of performative maneuver between the law of white supremacy and the actual situation of Chinese dominance in the urban economy by exploiting the fundamental fiction of the colon identity, despite French colonial efforts to embed site-specific racialized differences in the right to claim property. Here the law and the colonial modalities of application are not about the coherence of categories (law as a modality of erasure or race as the prerequisite of property) but rather the productive inconsistencies that let French officials and elite entrepreneurs operate within and through Cambodia’s property regime. After all, Wang Tai’s case also illuminates the dependence of the French colonizers on the extant capacities and connections of ethnic-Chinese entrepreneurs. ‘Colonial modalities of application’ thereby enabled the colonial apparatus to decide on an ad-hoc basis which racialized persons could partake in the propertied interests of colons. Of course, these exceptions were not without danger to the colonial logics and to hierarchies of rule themselves.

The property regime as imperial formation

Sifting through the archival records that were part of the making of private property in Cambodia, we see how colonial property regimes were not just the products of a capitalist logic of organization or of a bureaucratic rationality; rather, they were driven by the anxious enumeration of racialized subjects and the jealous tending of stolen land. The reams of correspondence preserved in the colonial archive illuminate the failure of the French colonial administration to fix the coordinates of racial and spatial exclusion in any lasting or decisive way. And yet the failure to reconcile contradictory laws, as well as the discretion with which the law operated, provided the conditions of possibility for ongoing forms of accumulation. These failures also constituted a pliable legal field through which to maintain the paternalistic power of the colonial (and later the post-colonial) state. Understanding colonial failure as property formation makes it possible to identify the muddled contradictions of colonial property regimes not as accidents or unfortunate perversions (at least not for their architects) but rather as decisively integral to the operation of power and authority (in its different historical iterations), and in particular to the power to sort people via the privileges of property.

A primary concern for Stoler in her recent work is to see the connectivities of the colonial past to the post-colonial present beyond the metaphors of immaterial hauntings or wayward vestiges:

The scholarly romance with “traces” risks rendering colonial remnants as pale filigrees, benign overlays with barely detectable presences rather than deep pressure points of generative possibilities or violent absences. The “haunting” trace seems too easily unmoored from material damages and disseminated landscapes. (2016: 4–5)

For example, Cambodian nationality remains a precondition of property ownership in Cambodia. Property specifically refers to land, given that there is no distinction in property law between a piece of land and the building above it. Instead, a building is seen as part of the land, as immovable as that to which it is attached. ²⁰ Land is constitutionally off-limits to foreigners: following Article 44 of the constitution, ‘All persons, individually or collectively, shall have the right to ownership. Only Cambodian legal entities and citizens of Cambodian nationality shall have the right to own land. Legal private ownership shall be protected by law’. Here it is significant that the official Khmer version of the constitution uses the term Khmer instead of Cambodian. Khmer refers to ethnicity and nationality in the Khmer language. In French and English, Cambodian primarily denotes nationality, although it sometimes operates as a stand-in for ethnicity. The principle restricting property ownership to Cambodian persons, whether natural or legal, is repeated elsewhere, such as in the 2001 Land Law and the 2007 Civil Code, which make up the core of contemporary property law. For Kork (2012), the restriction is meant to prevent land speculation in property markets. And yet land speculation throughout Cambodia, and especially in Phnom Penh, is rapacious, including among foreigners who access land by working with and through the nationality provision. In short, the slippage between ethnicity and nationality within the law provides both an opening and a closure when it comes to accessing land. The nationality provision appears settled in no small part because of the property regime’s room for bureaucratic maneuver, which allows foreigners to operate behind Cambodian corporations and shell companies.

Conceptions of property, nationality, and race in Cambodia are continuous creations; the ongoing manipulation of these categories says much more about the interests of those in a position of power than about those they purport to describe. Analyzing colonial failures as property formation illuminates the constitutive instability of categories of race, ethnicity, nationality, territory, and settlement. And it does so through a focus on how these instabilities are managed relationally, via the selective application of property logics of ownership and possession. Duality and contradiction, far from being evidence of an impediment to private property regimes, are integral to how the power to selectively enfranchise racialized groups has been an essential element of Cambodia’s private property regime from its colonial inception. In this case, the failure to install a liberal system of equivalent private ownership can be seen as the sustained success of racialized colonial hierarchies of power and access.