A Confucian Theory of Property
Created on:2022-11-18 10:18 PV:640
By Norman P. Ho |Article |9 Tsinghua China L. Rev. 1 (2016)   |   Download Full Article PDF

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 numerous 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 for full moral development (we might understand 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 Mencius (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. Furthermore, given the wide 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.” 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 all – 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.” 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).” 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 pluralist theory of property which justifies property simultaneously on numerous theoretical bases or strands. First, it justifies property based on a theory which might be identified and understood conceptually as one with utilitarian overtones – namely, that more people and society as a whole will be better off in a private property regime because such a society will be more stable, harmonious, and orderly. Second, it justifies private property as being critically important and essential in allowing individuals to develop themselves by fulfilling, expressing, and/or practicing the key Confucian virtues such as xiao (filial piety) , li (ritual propriety, rites, ritual) , yi (righteousness) and eventually, ren (benevolence) . And, only through the fulfillment and practice of these key Confucian virtues, can an individual reach his/her full moral development and potential through self-cultivation. In comparative and more modern terms, this strand can be conceptualized as a Confucian version of a “personhood-inspired” or a “personality and human flourishing-inspired” theory. Third, it justifies property based on what we might label an economy efficiency theory – that is, private property is key to a smooth functioning of a trade-based economy as well as ensuring productive, efficient division of labor. Each of these three strands comes together to comprise a unified, pluralist Confucian theory of property, linked by a common concern for the moral growth and development of the individual. This Article will proceed in multiple sections, each section addressing each of these theoretical strands in turn.

Through the above-posited Confucian theory of property, I hope to accomplish two broader scholarly goals. First, I hope this Article can help correct the still widely held view that Confucian thought is not supportive of, and even antithetical to, private property rights. Indeed, numerous scholars see Confucianism as being opposed to private property or portray Confucianism as a scapegoat of sorts in order to explain the weakness of private property protection in China and East Asia generally. Other scholars, notably Daniel A. Bell, do not take such a strong approach against Confucianism on the issue of property rights, but nevertheless choose to emphasize the Confucian tradition’s constraints on property, rather than consider how the Confucian tradition can serve as a justification for private property. Chinese legal scholars have also had similar attitudes toward Confucianism. For example, Chinese legal scholars who have tried to develop and improve property rights protection in mainland China today have not looked to the Confucian tradition for values standing for property protection; rather, they have urged Beijing to look externally to foreign law (e.g., US, Japanese, and continental European law, especially German law) as models and precedents for property rights reform. Furthermore, mainland China’s 2007 Property Rights Law – widely lauded as a key step forward in the Chinese government’s efforts to protect private property – was strongly influenced by Western, liberal ideas of private property rights. In other words, Confucianism has not been considered as a possible resource for justifying property rights. Indeed, to my knowledge, this Article represents the first attempt to set forth a Confucian theory of property. It should be pointed out here that some legal historians have discussed the existence of property rights in pre-modern China, namely late imperial China, arguing that China was in fact a society where property rights “were well-defined”. However, their projects are primarily historical, not normative – that is, they seek to understand how property rights were protected (or not protected) in historical China and how such protections (or lack of protections) were manifested in state and society.

The second broader scholarly goal that I hope to accomplish is to contribute to the field of property theory as a whole. Specifically, I believe that a Confucian theory of property can provide a more unified, truly pluralist justificatory theory of property more generally. Such a theory of property is arguably needed, as many property theorists have noted that property theory has been based on a blend of different and often conflicting theories, such as Lockean property theory, utilitarian theory, liberty and civic republicanism theory, and personhood theory. These various theories have typically been “embedded in a general moral theory which makes it difficult to use one argument to support, augment, or restrict another.” This leads to the problem where these various theories fail to come together into a uniform theory of property and are instead akin to a “jigsaw puzzle whose pieces do not fit neatly together.” Most scholars therefore continue to base their understanding of property on one theory, namely utilitarian grounds (perhaps partly to avoid the perils of the jigsaw puzzle). Indeed, the dominant account and justification of property continues to rest on utilitarian theory. Yet, as Stephen Munzer has noted, monist theorists such as these “attempt to reduce too much to a single perspective” and “obscure [ . . .] the validity of other perspectives.” Lawrence Becker has also pointed out that philosophers too often have “pushed their points as partisans for a particular brand of moral theory, ignoring sound arguments from other sources”, with the consequence that “property theories are divided against themselves.” Some voices have called for a shift from this still-dominant utilitarian account and justification of property toward a more pluralist, general version, but scholarly efforts have been relatively few in number, and none have looked outside the Anglo-American tradition for possible resources. Therefore, I believe a Confucian theory of property – which I will set forth in this Article – can help fill this void and specifically help solve the problem of a fragmented theory of property. While it cannot bring all of the various different strands of property theories together (e.g., a Confucian theory of property does not really address the liberty and civic republicanism theory), nevertheless, it can perhaps consolidate many of the most substantial theories into a coherent framework.

Before delving into the main body of this Article, it is important to make clear what this Article is not. There are two points to be made here. First, this Article is not a work on legal history or the history of legal thought – I am not principally concerned with laying out a history of Confucius’s or Mencius’s thought on property per se. As indicated earlier, this is a project in normative theory which seeks to identify, select, and explicate certain Confucian teachings and values which I believe are tenable to comprise a Confucian theory of property. That being said, this Article does pay attention to the historical context (especially as it pertains to property developments) in which Confucius, and especially Mencius, lived, to avoid an ahistorical reading or interpretation of the quoted primary sources. Second, this Article does not presume to suggest that it is presenting the Confucian theory of property – it only offers one possible viable Confucian theory of property based on my reading and interpretations of specific passages in the Mencius and the Analects.

As mentioned earlier where I set out the specifics of my thesis, this Article will proceed in four sections, each covering one theoretical base. Together, these four theoretical bases arguably comprise one unified, pluralist Confucian theory of property.