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Make Way for Women: Philosophical Adaptation of Confucian Property Practices

In: Culture and Dialogue
Author:
Gordon B. Mower Assistant professor, Department of Philosophy, Brigham Young University Provo, UT US

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Abstract

Women struggling for recognition encounter an important difficulty in structural barriers to property ownership. In this paper, I propose to investigate the possibility of a roughly Confucian conception of property that both eschews the liberal property rights conception and provides more space for women than has been allowed in traditional Confucian property schemes. Western property regimes also failed to provide women with adequate access to property, but this was corrected in a manner in keeping with the Western fixation on the individual. Important social problems arose in connection with the Western individualized approach to property relations. The traditional Confucian approach managed to avoid the Western problems, but, as in the West, it failed to provide women with sufficient access to property. I argue here that Confucianism is adequately supplied to correct this deficiency through two routes: one ritual-based and one canon-based.

Abstract

Women struggling for recognition encounter an important difficulty in structural barriers to property ownership. In this paper, I propose to investigate the possibility of a roughly Confucian conception of property that both eschews the liberal property rights conception and provides more space for women than has been allowed in traditional Confucian property schemes. Western property regimes also failed to provide women with adequate access to property, but this was corrected in a manner in keeping with the Western fixation on the individual. Important social problems arose in connection with the Western individualized approach to property relations. The traditional Confucian approach managed to avoid the Western problems, but, as in the West, it failed to provide women with sufficient access to property. I argue here that Confucianism is adequately supplied to correct this deficiency through two routes: one ritual-based and one canon-based.

1 Introduction

Early Western feminists of what has been characterized as the “First Wave” disparaged the political conditions that left women unable to maintain property. In one of the seminal articulations of early feminism, Marie-Olympes de Gouge asks, “Man, are you capable of being just?” and then she asks by way of a challenge, “Who has given you the sovereign authority to oppress my sex?” Among the rectifications she offers for an oppressive society is this one:

The right of property is inviolable and sacred to both sexes, jointly, or separately. No one can be deprived of it, since it is the true inheritance of nature except when public necessity, certified by law, clearly requires it, subject to just and prior compensation.1

The denial of property to women is a recognized problem of justice in the West. The early Western feminists achieved a remarkable but often forgotten accomplishment in reforming property arrangements to accommodate and recognize the presence of women in society.

The problem of women and property, however, has not been confined exclusively to the West. China, too, along with other places in Asia, has also traditionally denied women the privilege of maintaining property, and this denial has been linked to Confucian mores.2 We might think that a similar problem in China might be approached in a similar way to that embraced by the feminists of the West: assert that the rights of women are being denied and then extend those rights to include women. For a variety of reasons to be explored, however, such a move may not be in keeping with the other established moral concerns in Confucianism. As de Gouge encourages, the early Western feminists produced reforms in keeping with the moral outlook of the day, which has since perhaps become the dominant political moral outlook of the world: modern Western liberalism. These feminists embraced the language of property rights in which a right is some kind of a claim made by an individual on or against society.3 In order to later make the claim that a Western style approach to women’s property reform might not be appropriate for a Confucian setting, I first examine Western philosophical notions of property and the reform movement that extended legal rights of property to women. I will be following on the important work in the history of law and economics of Taisu Zhang in asserting that the worsening of familial relations in the West led to much more dynamic transfer of property which in turn led to a number of problems associated with centralization of land holdings. Zhang notes that these problems are driven in part by a Western individualized approach to property. Contemporary scholars of Asian philosophy – both those working from within the Confucian tradition and those beyond it – criticize Western liberalism due to its obsessive and excessive individualism. In seeking to apply the Western model of advancing Women’s property rights to Asia, the idea is that we can solve one recognized social problem – property restrictions for women – but in the process of that solution, we introduce several other social problems associated with Western liberalism that were not present before.

In this paper, I address the problem of women and property under Confucianism without proposing a liberal type solution to that problem. Instead, I examine Confucianism together with the social structure that it practically entails to see if it has the native wherewithal to give greater property recognition for women. In this, I follow Li-hsing Lisa Rosenlee, who says that she was “inspired by comments made regarding the viability of Confucianism to rectify itself to meet the problem of gender disparity without the import of Western ethical theories.”4 In her attempt to suggest such a correction, Rosenlee does not attend very much to the issue of property. I engage in a project similar to hers that is more focused on property. I will be examining two areas within Confucianism to see if the ideas there might not facilitate advancing women’s access to property. I will be taking for granted throughout this piece that denying women access to property is morally unacceptable, and I will presume this position without argument. The point is to see whether Confucianism can be coaxed into making some concession to this principle and adapting structure from other native principles to reflect it.5 The first of these areas within Confucianism that I examine is ritual propriety, li, and the social structure associated with it. I will argue that there is room for and philosophical justification for the social structure that has given a stability to property holdings that is not found in the West. One prong of the argument, then, is that this stabilizing social hierarchy could be made more welcoming to women without violating the spirit of Confucian morality. The second prong of the argument considers the classical canonical text of the Mengzi and the ideal property arrangements he elucidates. I argue that the text supports attending to property for women. A suggestion made here but not fully developed is that the Confucian approach to property may be exportable to other areas not belonging to that tradition.

2 Women and Property in the West

Western philosophers since Plato have been concerned about and have attended to the role property plays in social and political arrangements. Aristotle in the Politics gives perhaps the foundational treatment of the topic in classical Western philosophy. He notes first that property is the natural starting point for any investigation into politics and that property holdings must follow one of three dispositions: either all things are owned in common, or no things are, or some things are owned singly while some things are owned in common.6 It is not possible, he goes on to say, for any community to have a disposition such that everything is singly owned, for the idea of a community presupposes that some things are owned together by members of the community. The only viable choices, then, are between having everything owned in common, and only having some things owned in common. Aristotle, using Plato’s theory from the Republic as an illustration, thinks that having all things in common is a fatally flawed arrangement. That would seem to close the issue then against total communal ownership. Hence, in keeping with Aristotle’s normative preference for the mean, the best arrangement is that in which some things are owned singly, and others are held in common. This recognition, however, does not clear much up since a long continuum might be visualized between the extremes of singular holdings and completely communal holdings. Aristotle does not appear to pay much attention to the idea of a man and a woman who are in fact joint tenants of a property also, being de jure owners in common of that property. Without this legal recognition, however, when the marriage between the man and the woman is dissolved due to the death of the man, the woman who shared joint tenancy with the man is now left propertyless.

The most important early modern take on property comes perhaps from John Locke. In important ways, Locke follows the properties script laid down by Aristotle, but he makes one important alteration that moves his theory closer to the singular holding side of Aristotle’s continuum. In the beginning, says Locke, that is, in the very earliest stage of the state of nature, the world and everything in it were held in common because God had given it to all the children of men, to mankind in common. That the world was originally given in common, however, does not foreclose for Locke the idea that thereafter “men might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact of all the commoners.”7 Locke does not use at this point the language of a right to property, but that he derives this capacity for ownership from other explicitly named rights, the rights of preservation and to meat and drink, make it clear that what once was held in common by all people subsequently came to be distributed in accord with a regime of property rights. This establishes the normative device of a right as the principle through which property would thereafter be understood in the West.8

This idea of a right is inherently individualistic. A right is a claim one makes against all others.9 It is not an idea that takes readily to sharing, but instead seems prima facie to assert that that which I have a right to is specifically outside of that sphere of things that are shared or held in common. Locke’s use of the notion of a right, then, to property, to acquire it, to hold it, and to have it preserved even at the expense of others who are not free to enjoy that property themselves moves Locke’s theory strongly in the direction of singular holdings on Aristotle’s continuum.

Locke in his specification of a right to property has allocated no room to the idea of women as property rights holders. Like Aristotle, he acknowledges the role of a woman in a household, but although she shares in the same necessities as a man does, to self-preservation and to meat and drink, no right to property shared by the woman is derived from the more fundamental rights from which the man’s right to property is derived. Laying aside obvious myopia with respect to women, a partial culprit to making this theory defective is the concept of a right itself. Since it is fundamentally a claim made against others, it does not accommodate well sharing with others. This is so even though the practices that give rise to the notion of an exclusive usage involve a shared life of a family drawing sustenance from a demarcated plot of land. Upon introduction to this notion of rights, Confucians and other non-Westerners have suspected that it is normatively inadequate and fails to account sufficiently for that which we share together. Something seems to be wrong with the notion of rights itself.

Yet this arrangement in which women who contributed to a shared life in property were denied any ownership stake in that property was the one in place in England and in the United States through the nineteenth century under the doctrine of Coverture, and in the rest of Europe under analogous legal doctrines. Under coverture, all women’s property rights were forfeited to husbands. Unmarried women, on the other hand, that is, feme sole, retained their property rights. Rights were recognized in individual men and in individual women, that is single women, who were able to inherit, retain, buy, and sell properties and enter into contracts. Only by entering into a household were women’s rights subsumed to those of husbands. Their property became their husband’s property. So long as a woman remained single, she retained her status as an individual, and as such, she continued on as a recognized rights holder. This shows the extent to which the doctrine of rights orients toward individualism: when a household is formed by the amalgamation of separate individuals, the new arrangements must be subsumed under one individual who is the rights holder for all in the household.10

A promising reform direction might involve recognizing that a property regime is not best understood as an interlocking set of sole proprietorships. Both Aristotle and Locke take the most basic unit of consideration and property distribution to be the household. It is, however, just a mistake to think of the structure of a household as a singular proprietor occupying a holding and also having a number of other human attachments. It is plain that all those others, a wife, children, and perhaps others still have a stake in the enclosed and exclusive holding. The practice of householding has as its end, as Aristotle would say, the good life for each member of the household, and as such, each member of the house has a stake in the holding. A reform of property rights, then, to make the concept more inclusive might recognize a shared exclusivity with each member of the household having a proprietary stake in the holding.

That is not, however, the direction that property reform took in the West to make it more inclusive. Rather than taking the concept of a right as a singularly oriented claim made against others or against all others and making it a pluralistically held claim exercised against some others, the reform movement in the West maintained the orientation toward singular rights but extended the range of those who might hold them. Thus, married women as individuals came to be recognized as rights holders.

During the nineteenth century, the United States, England, and other European countries enacted a series of married women’s property law reforms. As Lee Holcombe points out, Victorian feminists considered the reform of married women’s property law to be “the first point in the woman’s charter.”11 The coverture doctrine had established that “in law husband and wife are one person, and the husband is that person.”12 This ‘legal fiction’ made husband and wife, and really, the entire household into one individual, and this individual was the designated title holder of property. The nineteenth century legal reforms did not give household recognition of holdings stakes, but rather established the personal individuality of the wife. This movement toward individual recognition of wives was, as Holcomb points out, driven more by economic realities than by philosophical ideas.13 Whereas the household had been the principal economic unit in the West with all the household members participating together prior to industrialization, in the modern arrangement, men left the household to work, and importantly, so did women. Women, to use Holcombe’s telling language, became “atomized” as economic individuals separated off from the social unity of the household.14 At the same time social critics began to argue that traditional marriage with its legal and religious fiction of one flesh was outmoded, and marriage should rather be conceived as a legal agreement between individual rights holders. Thus, the concept of marriage came to be conceived as an arrangement between individual holders of claims that might be exercised against each other. The married woman’s property law reforms reflected the new economic reality of industrialization as well as ethical ideas of social reform.

The Western model of supplying women equity in property had a range of salubrious outcomes. Women became able to retain the properties they held at the time they married. They received recognition for the right of survivorship. They could buy, possess, and sell property in their own names. They could enter into contracts in their own names. The laws opened the door for women to be able to take jobs, earn incomes, and enter into professions without their husbands’ consent, and they further opened the door for additional education and vocational training for women.15 The property legal reforms for women were the most important accomplishments for feminists of the nineteenth century.16

Yet these advances were made in a way that acknowledged and expanded the Western fixation on the individual. This individualistic turn had some consequences for women and men that run counter to the advantages gained. Taisu Zhang argues that in the period prior to the legal reforms “the importance of kinship ties in rural England precipitously declined.” This led to “a substantially ‘individualist’ sociological order,” and in turn this arrangement led to a significant reduction of smallholder property owners, a centralization of landholdings, and an industrialization of agriculture.17

The connection between individualism and this centralization hinges on the concept of alienability of property. Property rights holders must be able to dispose of their property or alienate themselves from it in order that property transfers might be quick and efficient. “The rights of property are vested in an individual,” says H.F. Schurman, and those rights are absolute; “hence, the property owner may dispose of his property at will.”18 Without this facility of transfer, capitalist accumulation is hindered, and this idea that “‘primitive accumulation’ of capital, specifically land, was crucial to Western industrialization has been central to Western economic thought since Adam Smith and Karl Marx and remains highly influential among political economists today.”19 Alienability is most efficiently accomplished when disposal takes place upon the will of one owner. The right is diminished as it is diluted through sharing because the act of disposal may be held up indefinitely by one or more contrary wills.20

Zhang argues that these outcomes were activated through individualization and a Western allocation of status and political power to wealth and property that were mechanized by a particular financial instrument: the classical mortgage. This instrument empowered wealthy and powerful individuals to foreclose on defaulted mortgages or to take advantage of smallholders’ fear of default on a mortgage to simply buy up properties and accumulate vast holdings. Zhang points out that Chinese smallholders under a broadly Confucian system in the late nineteenth and early twentieth centuries did not face the same range of pressures, in part, it must be acknowledged, because “Confucian ownership was vested in the family, not in the individual.”21 Contrary to received judgment, Zhang characterizes the Confucian property system as relatively egalitarian in comparison with England, and we might add, with the rest of the West.22 Under these Confucian arrangements, the Chinese smallholders enjoyed protection against loss of property, security against the interests of the rich, the good possibility of social mobility without becoming wealthy, and reinforcement of social cohesion. These are all, indeed, worthy social outcomes. The problem is, as one scholar put it, “Chinese women had practically no property rights.”23

3 Confucianism, Women, and Property

“Prejudice against women,” writes Xiongya Gao, “existed in China long before Confucianism.”24 In classical Chinese script, the character for woman is a pictograph that originally portrayed a woman in kneeling position. The written presentation of a woman, then, presents her as perpetually disposed in the attitude of one subservient or inferior. Herrlee Creel introduces the etymology of this character as a component of the character for “to want,” which is a pictograph of “a pair of hands seizing a woman, symbolizing ‘desire’ and ‘coercion.’”25 The kneeling soul being grabbed by a pair of hands seems less of a being who owns than a being who is owned. Gao begins her piece by noting the intrinsic sexual prejudice found in the ancient Book of Changes. Unsurprisingly, the ancient Chinese prejudices against women clearly antedate Confucianism as Gao says. Whether Confucianism itself deserves its well-worn reputation of continuing that tradition of prejudice and oppression is actually a matter of controversy among scholars. Gao for her part has no doubt; the coming of Confucianism meant severe oppression for women. Other scholars are less certain.26 I am less concerned here with the status that Confucianism affords women in general as I am with the allowances it makes for women with respect to owning property.

Paul Rakita Goldin has noted three reasons why Confucianism gets branded as sexist. One of these reasons is that beyond the early Confucianism of Confucius, Mengzi, and Xunzi, oppression of women has been institutionalized in the name of Confucianism.27 The status of women with regard to property may be one of these Confucian accretions. Women have been denied the same access to property that men have enjoyed in the Confucian sphere, but one evidence that this has been an accretion to a Confucian foundation and thought is that, as Catherine Bernhardt shows, when property in China is viewed from the point of view of women, property arrangements have been dynamic from the Song dynasty through modern times.28 The unsettled legal nature of women and property might indicate accretive reinterpretation of Confucian principles. Nevertheless, women have been consistently disadvantaged in these arrangements compared to men. Again, I’m not interested here in whether Confucianism produced disparity between the genders in property, but rather whether it has the practical power to resolve that difficulty.

One possible way forward might be to see if Confucianism could be made compatible with the doctrine of property rights. After what I have said before about the problematic nature property as a right, it might be thought that I would not move in this direction. I do not now deny that the notion of a right as conceived in the West is problematic, but the concept of a right might prove to be a useful framework to build upon. Let me be clear. Once we have conceded that Confucianism needs to give greater consideration to property ownership for women, it is not Confucianism that needs to adapt to the doctrine of rights, as if the idea of rights had attained perfection; the doctrine of rights must be made compatible with Confucianism. Joseph Chan, in a really remarkable treatment of assessing the relationship between Confucianism and rights asks, “is Confucianism compatible with the notion of human rights?”29 This is, however, I think to ask the question from the wrong direction. Confucian ideals might prove to be more exportable, to use Robert Cummings Neville’s terminology, if they can provide a model of how to adapt and revitalize the relatively defunct concept of rights.30

In his analysis, Chan dismisses the incompatibilist theories of Henry Rosemont Jr. and Roger Ames. Rosemont and Ames believe rights are incompatible on grounds similar to those that I have discussed above: their individualistic orientation. Chan rightly notes that Rosemont and Ames take their anti-individualism too far, even from the perspective of Confucianism itself. They embrace a no-self doctrine that is hard to square with classical Confucianism. My criticism differs from theirs in the level of analysis. I do not find the problem of rights and individualism to be found in metaphysical assumptions about there being no such thing as individuals. I concede to the existence of individual persons, and I think with Chan that this notion is intrinsic to classical Confucian texts. Rather, I have said that the individual orientation of rights is blind to the cooperative practices of these individual persons bound together in specified roles. That is to say, that a property is an enclosed space with a specified and exclusive usage. If several people, members of a family, inhabit that space together, and the exclusive usage of that space includes these and excludes all others, then one natural way of thinking about those people and that space is that they own it together. That the right of ownership is vested only in one of these people is a kind of blindness in the rights doctrine of how people live in spaces. I agree with Chan that Rosemont and Ames make a mistake in asserting the conceptual incompatibility of Confucianism and rights. The idea of a right here is an entitlement to use that space, and in familial Confucianism that right must be shared. I also agree with Chan that compatibility with “the full blown conception of human rights as expounded by certain contemporary liberal philosophes of rights or as developed in contemporary international laws” would be unacceptable to Confucianism, and we should opt instead for a “moderate compatibilist position.”31 The full-blown doctrine of rights is incompatible with Confucianism because such a doctrine means, as Rawls puts it, “Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.”32 With respect to a property right, that means that a person can accumulate vast stretches of the earth and exclude all others, even to death.33 This is incompatible with Confucianism at several levels. It violates the Mengzian sprouts and virtues of deference, compassion, and benevolence. A Confucian right cannot be like that. I think the most promising moderate compatibilist position is one in which our doctrine of rights is extended, not to cover additional classes of individuals, including women as individuals, but rather to clusters of individuals as guided by our actual living practices. The idea of a right is embedded in Confucianism as an exclusive entitlement of usage, but it must be shared among related individuals. This Confucian understanding of a property right may have traction as a reparative position where we find excessive centralization.

The problem I see in Chan’s treatment of human rights is that his discussion is at too general of a level, and it does not pertain well to property rights. He gives a sampling of the kinds of rights he has in mind: “the right not to be subjected to torture, arbitrary arrest, detention, or exile, the right to fair hearing, and the right to be presumed innocent until proven guilty.”34 These kinds of rights, he notes, are nowadays derived for humans “by virtue of their humanity.”35 They express human dignity.36 Chan thinks that under a regime of Confucianism, most such moral concerns would be administered through programmatic virtue cultivation. One can readily perceive with an eye to virtue that the good and benevolent person does not inflict torture. The person of the supreme Confucian virtue of ren or benevolence, however, may get no clearer signal over dividing parcels of the earth for enclosed exclusive usages than Locke did through the putative law of nature. Our concerns about property do not so much signal our humanity, as they appeal to the third type of good that David Hume, following Aristotle, stylizes as stability of possession.37 Everyone wants and needs some degree of management over the external world as it pertains to our lives. One way of thinking about women’s property rights is that the aggregation of them denies women the dignity of their humanity. Another less high blown way of thinking about this, however, is that women without property rights are denied stability of possession. This latter approach is just what women in Confucian society have had to deal with. As daughters, the possessions of their upbringing including their familial home was more unstable to them than it was to their brothers, or at some points of history, even to their male cousins, who stood to inherit that which the daughters did not. Even more disruptive of possession is the situation of the wife who outlives her husband. The property she built as part of a shared life now comes to be held by her son, or her sons. If she has no sons, it may be that her property falls into the hands of a designated nephew.

The idea of property rights that I am suggesting it is possible to devise would ensure greater stability of possession for women under an established Confucian regime of property arrangements. One notion of stability of possession under Confucian regime that is incommensurable with Western notions is that title to property is held by families rather than individuals. Even stating that title is held by families understates how different this idea is from the Western individualist perspective. The family here is understood in its cosmic sense as consisting of those on earth now, the ancestors from the past, and those persons who will join the family in the future. Respect for the ancestors has always been a central part of Confucianism and in fact was absorbed into Confucianism from an older antiquity. In one sense, the ancestors live on in the properties on which they labored. Lineage properties are held even today in trust by clans with proceeds from the properties used to ensure ancestral sacrifices.38 This means that contemporary Confucian property practice dovetails with ancient considerations of li or ritual. Families hold lands in perpetuity, across generations. This perpetuity is secured by ensuring the right kinds of inheritance, but it is not only secured through inheritance, but also through trusteeship, the stewardship of which facilitates continued ritual sacrifice for the ancestors. Now, even in ancient times, a competitor of Confucianism, Mozi, complained that Confucians gave too much emphasis to wives and children in li, when wives and children contribute relatively little to the overall well-being of the clan.39 His proposed alternative was to redirect more emphasis in li toward the clan uncles. They are the ones, not the family wives, who serve the family through ritual services. It is by virtue of these offices that they also become the trustees of the lands. Another alternative was available to Mozi that he did not consider: enhance the li responsibility for women within the clan. Since property is a shared holding among family members, and it is related to li operations within the clan, women will have greater property privileges as their roles in clan li increases. I am suggesting that one roughly Confucian way of enlarging property stability for women is to give them a greater role as wives in their married families and as daughters in their parents’ families in the clan rites.

In his comparative legal and economic history, Zhang demonstrates a causal relation between internalized Confucian moral beliefs and patterns of land use. Zhang shows that the Confucian mores combined with a counterpart instrument to the classical mortgage of the West: the dian, or conditional sale. The dian allowed farmers to use their land as collateral for a cash sum of up to eighty percent of the land’s value. During the time that the conditional sale was in place, the buyer, that is the lender, uses the land for profit. The seller, however, has the opportunity to redeem the land interest-free at any time. This Confucian instrument allowed for indefinite, even generational redemption of collateralized lands. Zhang further shows that this led to much greater stability of possession for families in the China of the nineteenth and twentieth centuries than the mortgage arrangement did in the West, where loss of family lands, centralized holdings, and industrialized agriculture became the rule. Zhang says that these favorable conditions were achieved by smallholders in China because the smallholders were represented in China by peers among them who held social status from the Confucian perspective by virtue of their age. These Confucian smallholder elders negotiated conditions for smallholders in general. In the West, on the other hand, negotiating status was given disproportionately to large estate holders, and they negotiated favorable conditions for large estate holders in general. The Confucian model of property, then, secured greater stability of possession for families.40 I grant Zhang’s thesis, but I suggest that the model is nevertheless normatively insufficient for received contemporary moral attitudes about women. One way to bring this greater stability to women is to enhance their status as elders, and it turns out they already have some cachet here. One way to further the property position of women from within Confucianism is to expand their recognition as elders by enlarging their role within clan rites generally, and one specific measure that might be taken is to allow women clan elders, wives and daughters, to act as trustees of family lands. The possibility of acting in a Confucian trustee position might be characterized as a right. So, greater property recognition for women from within the perspective of Confucianism can be achieved by elevating the status of women within li and as such thus elevate their status as elders with property arrangements. Their greater roles within the family opens for them the doors to greater management opportunities over family lands. Anna Sun has shown that in the Confucian revival, women are taking on a greater role in Confucian ritual with noticeable advances in ancestral worship rites.41

Another avenue to greater property access for women involves appealing to one of the canonical texts of Confucianism, the Mengzi (or as it has been popularly known in the West, the Mencius), the eponymous work of the first great Confucian systematizer. All the greatest property theorists – Aristotle, Locke, Hume (following Hugo Grotius), and now Mengzi in China – see the basic unit of property division to be the familial smallholder household estate. All of them implicitly or explicitly recognize the shared life of a husband and wife and children in a demarcated and exclusive plot of land. Mencius in his famous “well field” system stipulates that the family household plot belongs to a shared community. Seven other families have household plots contiguously located around the edges of a tic tac toe grid. The center plot in the grid of nine is a public plot that the eight surrounding families participate together in cultivating. For Mengzi, these eight families share a life together of labor, moral education, and assistance.

Within the plots themselves, Mengzi recognizes a shared life of labor, education, and assistance inside of the family. He intimates a complementary division of labor between the husband and wife, with the husband in the fields and the wife performing labors inside the house. In an interesting passage of the Mengzi, a wife and a concubine share a debauched husband who goes out each day and begs for food and drink at sacrificial offerings. When the two wives find out what he is doing they lament, “a husband is someone we look toward till the ends of our lives.”42 Mengzi ends this passage with a scathing reprimand of those who think of themselves as gentlemen (junzi), but who in their absence, give their wives and concubines reason to cry in shame. In another passage Mengzi gets King Xuan of Qi to admit that an entrusted friend who allows one’s wife and children “to become cold and hungry” is unworthy and must be dropped.43

Mengzi has set up a picture of property in which people in families and in communities share together in exclusive usage of designated lands. The idea already seems implicit here that title to property is vested in a family, but in that family, it is first a husband and a wife who share, as Mengzi says, in the greatest of human relations in one home.44 The great sage King Shun was justified, according to Mengzi, in not informing his parents of his marriage because doing so would have denied him from entering into that greatest of human relations.45 For Mengzi, the married relation is so precious that it warrants suspending the normal obligations of filial piety to parents. In entering into Mengzi’s greatest relation, however, the husband must not fail his wife and cause her hardship and cause her to cry in the way the previous passages indicate, and there is a lesson in these passages that pertains to the property relations that should obtain given the high status of marriage in Mengzi’s eyes. We can infer from among his disparagement of those who leave their wives to cry in their absence, and that a wife should be able to depend on her husband through the end of her life, and that a husband and a wife enjoy the greatest relation in a single house that they have worked in together that some property provision must be made for his wife when he goes absent from her by his death. Otherwise it is as if he has entrusted his wife to a friend who has left her cold and hungry. Thus, it would seem that Mengzi’s stated positions imply a right of survivorship in property to a wife who survives her husband.

All of this must be put in the context of Mengzi’s own upbringing. Mengzi was, by tradition, raised by a widow, as was Kongzi (Confucius) himself. The traditional stories of Mengzi’s widowed mother offer her as an exemplar of motherly virtue. They also involve her changing properties in order to ensure the proper upbringing of the future sage. The story has it that Mengzi’s mother first took a residence near a graveyard, but when she found her son emulating funerary practices, she moved to a new home near the marketplace. When she found her son emulating the calls and actions of those in the marketplace, she moved to a new home near a school. This property provided the benefit of scholarly models for the boy to emulate; so, she stayed.46 All of this is not possible without envisioning some degree of property liquidity and transferability. Of course, Mengzi’s mother might have been a renter. What are we to think, however, if Mengzi’s mother were to have been put out of the property near the school by her landlord and forced to move a fourth time to a property near, say, a battlefield, or a brothel? “Mengzi’s mother moved three times,” has become a reminder of a mother’s role in inculcating virtue in the greatest of sages. It should also be a reminder that she only moved three times, not four or five, and this required some stability of possession for a single mom. Mengzi himself states that under true kings, benevolent government gives the highest consideration to widows.47 Such consideration can lend itself to the notion of entitlements for women to buy, to sell, and to hold properties. Thus, the Mengzi, without much of a stretch, suggests a range of property rights for women including buying, selling, holding, and a right of survivorship.

Even if we grant, however, that this approach improves the property status of some women in Confucian societies, it still might be objected that the program fails with respect to single women who have no family. In Confucianism, the family is the gatekeeper of property, and when we recognize this, we realize that this issue is not so much an issue of single women, but of singles as such. Dealing with the individual has not been Confucianism’s strong suit. Placement within the family remains the Confucian ideal and is essential to any program that can be characterized as Confucian. Recall, however, Mengzi’s mother. Mengzi makes such vulnerable and unattached individuals – men and women – the special concern of the state under a Confucian regime of benevolent government. The role of the government with respect to the overall welfare of unattached individuals is a larger issue, but with respect to property, Mengzi seems to authorize a list of entitlements that unattached individuals can enjoy: buying, selling, and holding properties. If, however, the system of transfers excludes unattached individuals, it seems to be a reasonable extension of Mengzi’s thought to expect that he would approve a state institution of petition and redress.

4 Conclusion

Neither in the East nor in the West do the formative philosophical theories of property give adequate explicit consideration to the stability of possession for women. Using additional philosophical insights in responding to changing social conditions, the West made headway first in extending property rights to women. Under a series of legal reforms, women came to enjoy advantages of property ownership. The same individualistic ideas that led to these advantages for women, however, also resulted in certain social disadvantages concerning property including the advancement of large estate holdings that crowded out smallholders. Confucian property programs avoid these difficulties, but they also do not give women sufficient access to property. Confucianism, though, has within itself means for rectifying gender disparity in property by expanding the roles of women in the rites and by seeking insights from the canonical texts concerning women and property arrangements.

We might wonder, though, why this possible Confucian approach to women and property might matter in the modern world where transactional speed is important and relatively few people live the quaint life of rural householding. I do not want to get fully on board what appears to be a growing sentiment against capitalism, neoliberalism, and globalization. Nevertheless, those modern forces really do appear to have been damaging to human relations in certain ways. Marx has a point in suggesting that among its various forms of alienation, capitalism alienates us from each other.48 If speed of property transfers does, as I have tried to show, contribute to the alienation and worsening of our relations, especially our family relations, then a mechanism that recognizes and respects market operations but slows transactional speed and property transfers might be warranted. The warrant is lost, however, if implementing that mechanism leaves women behind. I have tried to show that it need not do so.

I agree that the world of the rural and agricultural smallholder has become antiquated. Largeholder property arrangements that bloat our cities seem justified for their efficiency in feeding a very large world population. The smallholder theoretical model of property ownership, however, with its foundational approach to individualistic property rights has guided development in the West through advanced finance capitalism. I see no reason why the smallholder model cannot guide a similar development trajectory in the Confucian sphere without thinking that it means we all have to move to the country.

A final word here on relevance concerns the current status of property in the Confucian sphere. The sphere of influence for Confucian countries, especially China, appears to be expanding at the same moment that the influence of liberal democratic states appears to be ebbing. In China itself, property arrangements have not finally settled as China has entered more into the economic mainstream from its socialist and collectivist past. As East Asian states have advanced in self-confidence on the world stage, they have increasingly looked to Confucianism as a guiding system of thought to replace in part an imported and superannuated liberal system of thought. What seemed old-fashioned at the turn of the twentieth century has been revitalized today. It may even be exportable to the West.

Biography

Gordon B. Mower teaches moral and political philosophy, early modern philosophy, classical Chinese philosophy, and Korean philosophy at Brigham Young University in Provo, Utah, USA. He is the author of over a dozen articles and reviews in those areas. His article, “Mozi and the Family,” appears in the latest issue of The Philosophical Forum.

1

Marie-Olympes de Gouges, “Declaration of Rights of Women and Citizens,” in Princeton Readings in Political Thought, ed. Mitchel Cohen (Princeton: Princeton University Press, 2018), 342-343.

2

By “Confucian,” and “Confucianism,” I mean the system of thought originated in the writings of Confucius (Kongzi), Mencius (Mengzi), and Xunzi that emphasize adherence to traditional rites (li) and various virtues including benevolence (ren) and filial piety (xiao). It is also inclusive of later writers, neo-Confucians, who incorporated other systems of thought, Daoism and Buddhism, into the “classical” outlook of the originating Confucians.

3

See “Rights,” in Black’s Law Dictionary, ed. Bryan A. Gardner (St. Paul: Thomson/West, 2004). See also, Joseph Chan, Confucian Perfectionism: A Political Philosophy for Modern Times (Princeton: Princeton University Press, 2014), 121.

4

Li-Hsiang Lisa Rosenlee, Confucianism and Women: A Philosophical Interpretation (New York: SUNY Press, 2006), ix.

5

I take it that acceptance of the principle involves modification of Confucianism as practically instituted, but it may be that philosophical Confucianism requires it.

6

Aristotle, Politics II, 1260b 37-38, trans. Benjamin Jowett (New York: Modern Library, 1943), 80.

7

John Locke, Second Treatise of Government (Indianapolis: Hackett Publishing, 1980), 18.

8

Locke belongs to an early modern tradition beginning with Hugo Grotius that establishes a right to property. Locke is not the first in this tradition, but he is the most preeminent.

9

In this discussion, I follow the natural law approach to understanding rights as manifestations of reason with the adaptation by Grotius that they would hold as ethical constraints even if there were no God as presupposed in that tradition prior to Grotius.

10

This notion of several individuals being treated as if they were an individual is reminiscent of John Rawls’ description of utilitarianism. In presenting a brief history of Western property regimes, I have not attended to the thought of John Rawls. This stands in need of explanation since Rawls occupies such an important post in contemporary political theory. In the first place, Rawls’ theory postdates the Western property reforms that enabled women to have property status comparable to men. Secondly, in A Theory of Justice (revised edition, Cambridge: Harvard University Press, 1999) he does not work out a theory of property ownership in the way that Locke does. Nor in that work, as Susan Moller Okin (See Justice, Gender, and the Family, New York: Basic Books, 1989, ch. 5) critically observes, does he have much at all to say about the family. Rawls, then, for all his greatness, does not fit well with the history of women and property in the West, nor does he provide a reasonable entry point for consideration of Confucian reform of property. Moreover, when Rawls pivots from A Theory of Justice to property concerns in Justice as Fairness: A Restatement (Cambridge: Harvard University Press, 2001), his idea of a “property-owning democracy” focuses again on the individual. In advocating there for widespread, albeit individually held, property distribution through property-owning democracy, he seeks to align Western arrangements with what Confucians had already achieved by other means as discussed below.

11

Lee Holcombe, Wives and Property: Reform of the Married Women’s Property Law in Nineteenth Century England (Toronto: University of Toronto Press, 1983), 4.

12

Ibid., 18.

13

Ibid., 8.

14

Ibid., 7.

15

Ibid., 4.

16

Ibid., 3.

17

Taisu Zhang, The Laws and Economics of Confucianism: Kinship and Property in Preindustrial China and England (Cambridge: Cambridge University Press, 2017), 22.

18

H.F. Schurman, “Traditional Property Concepts in China,” The Far Eastern Quarterly 15, no. 4 (1956): 507.

19

Zhang, The Laws and Economics of Confucianism, 15-16.

20

Alienability is one of the elements included in the bundle of fee simple property rights.

21

Daniel A. Bell, “Confucian Constraints on Property Ownership,” in Confucianism for the Modern World, eds. Daniel A. Bell and Hahm Chaibong (Cambridge: Cambridge University Press, 2003), 243.

22

Taisu Zhang, “Social Hierarchies and the Formation of Customary Property Law in Pre-Industrial China and England,” The American Journal of Comparative Law 62, no. 1 (2014), 218.

23

Olga Lang, Chinese Family and Society (Hamden: Archon Books, 1946), 44; quoted in John L. McCreery, “Women’s Property Rights and Dowry in China and South Asia,” Ethnology 15, no. (1976), 163.

24

Xiongya Gao, “Women Existing for Men: Confucianism and Social Injustice against Women in China,” Race, Gender & Class 10, no. 3 (2003), 114.

25

Harrlee Glesner Creel, Literary Chinese by the Inductive Method (Chicago: University of Chicago Press, 1938), 64.

26

See Anna Xiao Dong Sun, “The Emerging Voice of Women in the Revival of Confucianism,” in Confucianism as a World Religion: Contested Histories and Contemporary Realities (Princeton: Princeton University Press, 213), 137.

27

Paul Rakita Goldin, “The View of Women in Early Confucianism,” in The Sage and the Second Sex: Confucianism, Ethics, and Gender, ed. Chenyang Li (La Salle: Open Court Press, 2000), 150.

28

Kathryn Bernhardt, Women and Property in China, 960-1949 (Stanford: Stanford University Press, 1999), 1-8.

29

Chan, Confucian Perfectionism, 113.

30

By relatively defunct, I am referring here to the idea set out above that individual property rights can be self-undermining. That is, all individuals presumably have them, but with centralization of property, increasingly, only an elite cadre can come to exercise those rights.

31

Chan, Confucian Perfectionism, 114.

32

Rawls, Theory of Justice, 3.

33

Since these excluded others have a right to life, inviolable rights come into conflict with each other. I have argued elsewhere that the inherent conflict between the right to eat and the right to property is what ultimately forces humans from the state of nature into regime of government and positive law in Locke’s theory.

34

Chan, Confucian Perfectionism, 117.

35

Ibid., 114.

36

Ibid., 121.

37

David Hume, A Treatise of Human Nature, eds. David Fate Norton and Mary J. Norton (Oxford: Oxford University Press, 2000), 313.

38

Kwok-shing Chan, “Women’s Property Rights in a Chinese Lineage Village,” Modern China 39, no. 1 (2013), 101-128.

39

John Knoblock and Jeffery Riegel, Mozi: A Study and Translation of the Ethical and Political Writings (Berkeley: Institute of East Asian Studies, 2013), 314.

40

Zhang, The Laws and Economics of Confucianism, 22-25.

41

Sun, “The Emerging Voice of Women in the Revival of Confucianism,” 144-150.

42

“Mengzi,” trans. Bryan W. Van Norden in Readings in Classical Chinese Philosophy, eds. Philip J. Ivanhoe and Bryan W. Van Norden (Indianapolis: Hackett Publishing, 2003), 141-142.

43

Ibid., 124.

44

Ibid., 142.

45

Ibid., 142-143.

46

Ibid., xiv.

47

Ibid., 22.

48

Karl Marx, “Estranged Labour,” in Princeton Readings in Political Thought, eds. Mitchell Cohen and Nicole Fermon (Princeton, Princeton University Press, 1996), 444.

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