Norman Ho (Peking University School of Transnational Law) has posted A Conservative Theory of Property, Loyola University of Chicago Law Journal, Vol. 58 (forthcoming) on SSRN. Here is the abstract:
The great majority of property law theorists today subscribe to progressive property theories. These theories view property law mainly as an instrumentalist tool and as a force for battling social inequality and shaping individuals and communities to realize pluralist, diverse moral ideals, ideals such as emphasizing the obligations of property owners to society and to the greater good. In contrast, in this Article I reject progressive property theories and sets forth and defends what I term a “conservative” theory of property. Drawing on the thought of two great thinkers who have been classified by commentators as “conservative” and who have been largely ignored in property law theory scholarship – English political theorist Edmund Burke (1729-1797) and the Chinese philosopher Confucius (551-479 BC) – this conservative theory of property is monist (not pluralistic), grounded in human nature, and justifies property not on its contributions to desired social engineering goals, but rather on property’s power of individual moral formation and development. In particular, this conservative theory of property conceives of property as inherited and inter-generational, cultivating individual moral virtues such as respect for ancestors and posterity, individual responsibility, individual restraint, and stewardship of property for self, family, ancestors, and future generations. The importance of property, in other words, should not be about bringing about substantive pluralist ends or making sure everyone is looked after, but rather in forming and developing moral virtue grounded in inter-generational relationships, family, and tradition. But the conservative theory of property is not cold and heartless. The individual moral development resulting from this conservative theory of property can in turn actually lead to a more charitable community of moral support, which is also one of the goals progressive property theory aims to achieve. Finally, this Article applies the conservative theory of property to three specific property law doctrines – the law of waste, squatters & self-help eviction doctrine, and the debate over perpetual trusts – so the reader can see how my conservative theory of property might work in the “real world” to inform contemporary property law debates.
Readers with an interest in this paper may also be interested in Legal Theory Lexicon 113: Property Theory.
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