A Confucian Theory of Property

• Author: Norman P. Ho
• Pages: 2-21

2 TSINGHUA CHINA LAW REVIEW [Vol. 9:01

A CONFUCIAN THEORY OF PROPERTY

Norman P. Ho

Abstract

Based on an analysis of the teachings of Confucius and Mencius,

this Article sets forth a Confucian justificatory theory of private

property. I argue that such a theory is a pluralist theory,

simultaneously based on numero us theoretical bases or strands.

First, it justifies property based on a theory with utilitarian

overtones – namely, that people will be better off in a private

property regime as it will lead to a more stable, harmonious, and

orderly society. Second, a Confucian theory of property justifies a

private property regime as essential in allowing individuals to fulfill,

express, and/or practice key, specific Confucian virtues, which in

turn allows fo r full moral development (we might understan d this

conceptually as a Confucian version of a personhood/human

flourishing theory of property). Third, it justifies property based on

an economy efficiency theory – that is, private property is key to the

smooth functioning of a trade-based economy. All three strands are

linked together by a common concern for the moral development of

the individual. This Article is important for two major reasons: first,

it serves as a corrective to the often heard stereotype that

Confucianism is not supportive of property rights; and second, it can

contribute to the field of property theory as a whole by offering a

coherent and integrated theory which weaves different justificatory

property theories together.

I. INTRODUCTION

This Article aims to set forth a Confucian theory of property. A

few preliminary remarks regarding methodology and terminology are

in order. First, by “Confucian” or “Confucianism”, I refer to the

teachings and thought of Mencius1 (c. 372-289 B.C.) (as revealed

through the Mencius, a text containing Mencius’s dialogues and

teachings), and to a lesser extent, Confucius (551-479 B.C.) (as

revealed through the Analects, a collection of Confucius’s sayings

and teachings). While there are many philosophers in the Chinese

Confucian tradition, a focus on Confucius and Mencius is warranted.

Confucius was the first teacher and founder of the school of thought

– Confucianism – which bears his name, and Mencius – who helped

develop Confucius’s thought and whose interpretation and

development of Confucian thought became the Confucian orthodoxy

in Chinese history – is widely regarded as the second most important

Confucian thinker after Confucius.2 Furthermore, given the wide

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1 Mencius is also romanized as Mengzi.

2 Daniel A. Bell, Confucian Constraints on Property Rights, in CONFUCIANISM FOR THE MODERN

WORLD 218, 220 (Daniel A. Bell & Haim Chaibong eds., 2003). Of course, there may be other

2016] A CONFUCIAN THEORY OF PROPERTY 3

range and breadth of Confucius’s and Mencius’s teachings, I focus

only on those that I believe are pertinent to a theory of property.

Second, by “theory”, I mean a normative and justificatory theory of

property (in contrast to an analytical or definitional theory of

property) – that is, a theory that “attempts to provide a normative

justification for allocating rights to material resources in a particular

way.”3 Furthermore, under the umbrella of justificatory theories of

property, this Article focuses on general justificatory theories – that

is, theories that seek to justify the general idea of having things

controlled by private individuals, or put another way, theories that

query why there ought to be property rights of any sort at all4 – and

not the justification of, as Jeremy Waldron put it, “principles by

which some people come to be owners of particular resources while

others do not.”5 Third, by “property”, I mean private property (in

contrast to common property or collective and state-owned property),

which itself can be understood as rules of property organized around

the notion that “contested resources are separate objects, each

assigned to the decisional authority of some particular individual (or

family or firm).”6 Additionally, with respect to private property

types, the theory set forth by this Article has implications for both

real property and personal property.

My thesis is as follows: I argue that a Confucian theory of

property (as set forth in this Article) is a pluralist7 theory of property

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Confucian thinkers that one can reference in producing a Confucian theory of property. However, I

have chosen to focus on Confucius and Mencius, who, as Daniel A. Bell puts it, are the two “founding

fathers” of Confucianism.

3 GREGORY S. ALEXANDER & EDUARDO M. PEÑA, AN INTRODUCTION TO PROPERTY THEORY 6 (2012).

As Jeremy Waldron notes, there are two major philosophical and theoretical issues in property law –

analytical (definitional) issues about the meaning and use of the key concepts in property law (e.g.,

questions such as “what is property?” and “what does ownership mean?”) – and secondly, justificatory

and normative issues in property law (e.g., questions such as, “what justifies the protection of private

property?”). Jeremy Waldron, Property Law, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL

THEORY 9, 9 (Dennis Patterson ed., 2d ed., 2010).

4 LAWRENCE C. BECKER, PROPERTY RIGHTS: PHILOSOPHIC FOUNDATIONS 23 (1977).

5 Waldron, supra note 3, at 16.

6 Id. at 12.

7 By “pluralist theory”, I mean theories which take numerous relevant values into account and seek to

synthesize them. Such theories are to be contrasted with “monist” theories, which only take one value

into account. For example, in the realm of property theory, a pluralist theory of property seeks to

synthesize different philosophical stances (e.g., utilitarianism, labor theory of property) into one single

basic theory, whereas a monist property theory would seek to justify property by focusing on only one

philosophical stance or value, such as utilitarianism or welfarism (i.e., a law and economics approach).

For an example of scholarship attempting to develop a pluralist theory of property, see STEPHEN R.

MUNZER, A THEORY OF PROPERTY (1990). For a critical review of Munzer’s book, see Thomas W.

Merrill, Wealth and Property: Book Review of A Theory of Property by Stephen R. Munzer, 38 UCLA

L. REV. 489 (1990). For a discussion of pluralism and monism in normative legal theories generally, see

Steven J. Burton, Normative Legal Theories: The Case for Pluralism and Balancing, 98 IOWA L. REV.

535 (2013). For an example of scholarship setting forth a monist theory of property (specifically, a

non-pluralist defense of first occupancy theory in property theory), see Peter Benson, Philosophy of