Private Law Theory

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 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.

Ho, Norman P, A Confucian Theory of Property (2016). Tsinghua China Law Review, Vol 9, No 1, 2016.

First posted 2017-03-16 07:37:03