A Confucian Theory of Property

AuthorNorman P. Ho
Norman P. Ho
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.
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
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
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 all4and
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
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.
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).
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

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