Legalism (Chinese philosophy)

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Legalism
Shangyang.jpg
Statue of the legalist Shang Yang
Chinese 法家
Literal meaning School of law

"Chinese Legalism" (Chinese: 法家; pinyin: fă jiā),[1] is a categorization of certain political-philosophical currents, reforms, persons, and writings that emphasize the strict use of law by the autocrat.[2][3] Centering in the Warring States (475-221 BC) and sometimes its antecedent Spring and Autumn period, it is known infamously in reference to the draconian Qin state, its ministers, and Emperor Qin Shi Huangdi. In the West the above are often compared with political realist figures like Machiavelli,[4] or with the western rule of law concept; and while Legalism may intend the development of a legal system for the running of political, economic and social spheres, law is regarded in its infancy as a tool initiated and used by the ruler.[5] In the philosophy of Lord Shang, the idea is held that, in an orderly state, "law abolishes law" and "words abolish words";[6] the purpose of law being accomplished it even falls into disuse, a Taoist vision.

Some historians simply classed "Legalist" writings with the Taoist ideas that they sometimes relate with, Legalism only being made a discrete "school" by later historians for reasons of systematization; the term Legalist is applied posthumously.[7] The currents defining the Qin transformation had been long in development, and much earlier Zhou documents, not generally referenced as Legalist, also emphasized the use of reward and punishment characteristically associated with Lord Shang and Qin.

Unlike the other ideologies of the period, there was not any organized school of "Legalism" other than the ministers and reforms of the different states building upon each other over time; made more draconian in the case of Shang Yang, migrant from the Wei to the Qin state, or eventually synthesizing, as in the case of Han (Master) Fei from the Han state. A basic tenet of the Book of Lord Shang is to "let the law teach", and with that, that it be well-known and easy to understand; later "Legalist" writers account the book's mass distribution as useless in improving agriculture, being addressed as it were to the ruler with the intent of implementation.

The reformers of the Qin state drew on the reforms of the Chu and Wei states, and the term has also sometimes been used as descriptive of the writings and policies of earlier Spring and Autumn period (771-476 BC) ministers even while "Realist Confucian" might be a better appellation. "Legalist" writings and reforms were in fact syncretic, drawing on earlier intellectual activity like Taoism, Mohism and Confucianism, though Legalists rejected or even vilified the latter two. Mohism like Legalism includes authoritarian precepts and organization antithetical to those of tradition, emphasizing authority outside the family, and Ministers Li Si and Han Fei Zi were taught by heterodox Confucian Xunzi, who, rejecting the innate human goodness or morality of Mencius, emphasized the importance of education and system (ritual). Comparing with Confucianism, Legalism transfers emphasis on moral and ritual code over to legal code;[8] while Legalism considers law more in the context of fidelity to the monarch, prior to this law and morality were not considered separable.[9] Shang Yang even considers morality useless or harmful, serving to promote people for reasons other than merit.

In spite of the demonisation of Qin and associated writers, methods and ideas, Legalist currents compounded into administrative tradition and necessity, and continued to influence or determine Chinese political, administrative and bureaucratic structure and practice thereafter, though often masked by Confucianism.[10][11][12] Those termed as Legalists are referenced explicitly even in the modern era,[13] and modernly the term is also sometimes used to describe policy later than that of the Qin dynasty, such as that of the Han, Wei, Shu Han, or Sui Dynasties,[14][15][16][17] even while they themselves may not have self-identified with the term. Indeed, some often high ranking ministers,[18] and for example some Han period texts, such as the Huananzi,[19] even use some of the same terms and emphasized some of the same methods.[20] Thus, while it has been used primarily by Chinese historians as a Qin Warring States period categorization, and secondly in reference to some Spring and Autumn period writers and reforms, the term is now also used as a descriptor of policy.

Strictures of Han Fei[edit]

The school's best known contributor, Han Fei, synthesized the ideology of earlier proponents. His philosophy might be summarized as using following three tools to govern subjects:

  • Fa (; p 'fǎ', lit. 'law'): The law code must be clearly written and made public. All people under the ruler were equal before the law. Laws should reward those who obey them and punish accordingly those who dare to break them. Thus it is guaranteed that actions taken are systematically predictable. In addition, the system of law, not the ruler, ran the state, a statement of "rule of law". If the law is successfully enforced, even a weak ruler will be strong.

"The ancients who completed the principal features of legalism... never burdened their mind with avarice nor did they ever burden themselves with selfishness, but they entrusted law and tact with the settlement of order and the suppression of chaos, depended upon reward and punishment for praising the right and blaming the wrong, assigned all measures of lightness and heaviness to yard and weight."[21]

  • Shu (; p 'shù', lit. 'method'): Special tactics and 'secrets' are to be employed by the ruler to make sure others don't take over control of the state. Especially important is that no one can fathom the ruler's motivations, and thus no one can know which behavior might help them get ahead, other than following the laws.[5]

"If the sovereign does not compare what he sees and hears, he will never get at the real... If the ruler listens straight to one project alone, he cannot distinguish between the stupid and the intelligent. If he holds every projector responsible, ministers cannot confound their abilities."[21]

  • Shi (; p 'shì', lit.'legitimacy'): It is the position of the ruler, not the ruler himself or herself, that holds the power. Therefore, analysis of the trends, the context, and the facts are essential for a real ruler.

"Have you the wisdom of Yao but not the support of the masses, you cannot accomplish any great achievement; have you the physical force of Wu Huo, but no help from other people, you cannot raise yourself; have you the strength of Mêng Pên and Hsia Yü but uphold neither law nor tact, you cannot triumph for ever. Therefore, certain positions are untenable; certain tasks, unattainable."[22]

Han Fei wrote regarding the differing teachings of his predecessors, "It is impossible to compare them. Man, not eating for ten days, would die, and, wearing no clothes in the midst of great cold, would also die. As to which is more urgently needful to man, clothing or eating, it goes without saying that neither can be dispensed with, for both are means to nourish life. Now Shên Pu-hai spoke about the need of tact and Kung-sun Yang insisted on the use of law. Tact is the means whereby to create posts according to responsibilities, hold actual services accountable according to official titles, exercise the power over life and death, and examine the officials' abilities. It is what the lord of men has in his grip. Law includes mandates and ordinances that are manifest in the official bureaus, penalties that are definite in the mind of the people, rewards that are due to the careful observers of laws, and punishments that are inflicted on the offenders against orders. It is what the subjects and ministers take as model. If the ruler is tactless, delusion will come to the superior; if the subjects and ministers are lawless, disorder will appear among the inferiors. Thus, neither can be dispensed with: both are implements of emperors and kings."[23]

The qualities of a ruler[edit]

Primarily members of the ruling class, the Legalists emphasized that the head of state was endowed with shi, the "mystery of authority", and as such his decisions must always command the respect and obedience of the people. The state (country) comes first, not the individual. The emperor’s very figure brought legitimacy. In emphasizing the power of rulership, Legalists such as Shen Dao (c. 350–275 BC) and Shen Buhai sought to devalue the importance of the charismatic ruler. Skillful rulers hid their true intentions and feigned nonchalance. To ensure that all of his words were revered, the wise ruler kept a low profile. Thus, theoretically, by cloaking both his desires and his will, the Emperors checked sycophancy and forced his subject to heed his dictates. While Shang Yang (the Prime Minister of Duke Xiao of Qin) would allow rulers to listen to musical instruments rather than focus on foreign policy, Han Fei (the Legalistic scholar most admired by the First Qin Emperor, Qin Shi Huangdi) demanded more of the wise ruler. A good leader, by Han Fei's standards, must not only accept the advice of loyal ministers when shown to be in error, but must also extend courtesy to those beneath him or her and not be too avaricious. The adept ruler also understood the importance of strictness over benevolence. Although the ruler was expected to be paternalistic, the Legalists emphasized that being too kind would spoil the populace and threaten the state's internal order. Interestingly, according to the Han's Grand Historian Sima Qian (c. 145–86 BC), while the First Qin Emperor hid himself from the rest of the world (perhaps due to a desire to attain immortality) and thus maintained a low profile, he did not necessarily follow all of the Legalists’ advice on the role of the ruler.

Ministers[edit]

To aid the ruler and help prevent misgovernance, Shen Buhai – a minister from the state of Han for fifteen years – formalized the concept of shu, the bureaucratic model of administration that served to advance the ideal Legalist ruler’s program. To the Legalists, the intelligent minister was the ruler's most important aide. Whereas the minister’s duty was to understand specific affairs, the ruler was responsible for correctly judging ministers’ performances. Stressing that ministers and other officials too often sought favours from foreign powers by abusing their positions, Han Fei urged rulers to control these individuals by the two handles of punishment and favour. Officials were required, through fear, to ensure that ministers' accomplishments were neither greater than nor inferior to the assigned undertaking. According to the eminent sinologist Robin Yates, newly discovered Qin Dynasty legal codes show that officials were required to correctly calculate the exact amount of labor expected of all artisans; if the artisan was ordered to perform either too much work or too little work, the official would be held accountable. Thus, in Legalist theory, ministers and other officials were prevented from performing some other official's duties and were punished if they attempted to blind the ruler with words or failed to warn the ruler of danger. One consequence of this situation was that the ministers could always be held accountable for royal misadventures while the ruler’s name was never to be tarnished. By emphasizing performance, however, over sophistry, the Legalists hoped to eliminate bureaucratic corruption and intrigues amongst the officialdom through fear of being severely punished, exiled or executed.

Purpose of law[edit]

The laws supported by the Legalists were meant to support the state, the emperor, and his military. They were also reform-oriented and innovative. In theory, the Legalists believed that if the punishments were heavy and the law equally applied, neither the powerful nor the weak would be able to escape consequences. The Legalists especially emphasized pragmatism over precedence and custom as the basis of law. Guided by Legalist thought, the First Qin Emperor, Qin Shi Huang, would weaken the power of the feudal lords, conquer and unify the warring states into a single empire, create thirty-six administrative provinces, and standardize the writing system. Reflecting Legalist passion for order and structure, Qin soldiers were only mobilized when both halves of tiger-shaped tallies (one held by the ruler and the other by the commanding general) were brought together. Likewise, all documents in the empire had to have recorded the year they were written, the scribe who copied them, and up to the exact hour of delivery. Accepting Shang Yang’s earlier emphasis on the standardization of weights and measures, the Qin Shi Huang would also accept Shang Yang’s philosophy that no individual in the state should be above the law (by ensuring harsh punishments for all cases of dissent) and that families should be divided into smaller households. While there is reason to doubt Sima Qian’s claim that Qin Shi Huang did in fact divide households into groups of ten, certainly the other examples of standardization and administrative organization undertaken by the First Emperor reflect the importance of Legalist thought in Qin law.

Individual autonomy[edit]

The Legalist philosophers emphasized the primacy of the state over individual autonomy. The lone individual had no legitimate civil rights and any personal freedom had to strengthen the ruler. Han Fei, in particular, would be very caustic towards the concept of individuals rights. Fundamentally, the Legalists viewed the plebeian (common people of lower class) and their actions as evil and foolish.

However, Legalism allowed the common people to gain in rank if they performed well. For example, soldiers would gain in rank according to the number of heads the soldiers collected. A soldier may even gain noble rank. In contrast, some other states allowed only the well-connected to gain higher ranks. An example of this would be Lü Buwei, who originally a merchant, was able to become Chancellor of China, an occurrence that would never happen in the other six states. He played a major role in King Zhuangxiang of Qin's rise to power.

According to Shang Yang's The Book of Lord Shang, the people themselves wanted a ruler to generate order. Social cohesion in the Legalist state mandated that the populace never escape punishment. The Qin dynasty used the people, for example, to maintain vigilant mutual surveillance over one another under threat of death.

This intrastate realpolitik would end up devouring the Legalist philosophers themselves. Shang Yang, in advocating the state’s right to punish even the parent’s tutor, would run afoul of the future King Huiwen of Qin (c. 338–311 BC). Whereas at one point, he had the power to exile his opponents (and, thus, eviscerate individual criticism) to border regions of the state, he was captured by a law he had introduced and died being torn into pieces by chariots. Similarly, Han Fei would end up being poisoned by his envious former classmate Li Si, who in turn would be killed (under the law he had introduced) by the aggressive and violent Second Qin Emperor that he had helped to take the thrones.

Decline[edit]

With the fall of Qin, Legalism was demonized and ceased to be an independent school of thought. However, both ancient and modern Confucian observers of Chinese politics have argued that some Legalist ideas have merged with mainstream Confucianism and still play a major role in government. Qin Hui memorably glossed the reality of imperial China as "Confucian on the outside, but Legalist within" (, p Rú biǎo, Fǎ lǐ).[24] In other words, Confucian values were used to sugarcoat the harsh Legalist reality that underlay the Imperial system. During the Sui and Tang dynasty, Buddhist ideas were also part of the external face of the imperial system.

The Sui dynasty's policies during its efforts to reunify China might called "legalistic" and the short-lived Sui even resemble the Qin in some ways, carrying out mass-labour projects in agriculture, a likely inspiration for latter attempts at the same by Maoism. Like the Han with the Qin, the Tang government used the government structure left behind by the Sui dynasty, albeit with much reduced punishments.

References[edit]

  1. ^ https://www.sas.upenn.edu/ealc/system/files/bio/%5Buser-raw%5D/papers.  Missing or empty |title= (help)
  2. ^ "Legalism and Huang-Lao Thought". Indiana University. Indiana University. 
  3. ^ Pines, Yuri. "Submerged by Absolute Power: The Ruler’s Predicament in the Han Feizi". 
  4. ^ "Han Fei-tzu (d. 233 BCE): Legalist Views on Good Government". 
  5. ^ a b http://www.chinaorbit.com/china-culture/chinese-philosophy/legalism.html
  6. ^ http://ctext.org/shang-jun-shu/making-orders-strict
  7. ^ Ricket, Guanzi
  8. ^ http://ctext.org/shang-jun-shu/attention-to-law
  9. ^ http://link.springer.com/article/10.1007/s11463-011-0148-y?no-access=true
  10. ^ Hooker, Richard. "Legalism". 
  11. ^ "The Han Dynasty". Indiana University. Indiana University. 
  12. ^ Watkins, Thayer. "Legalism and the Legalists of Ancient China". applet-magic.com. San José State University. 
  13. ^ "Mao Tse-Tung on Legalism and Lord Shang: How China's ancient past influenced its future". 
  14. ^ "Legalism, Qin Empire and Han Dynasty". 
  15. ^ http://history.cultural-china.com/en/167H8721H13212.html.  Missing or empty |title= (help)
  16. ^ https://digitalcollections.anu.edu.au/html/1885/42049/3KWJin.html.  Missing or empty |title= (help)
  17. ^ http://www.eastasianhistory.org/sites/default/files/article-content/25-26/EAH25-26_02.pdf.  Missing or empty |title= (help)
  18. ^ Mark Edward Lewis, The Early Chinese Empiresi
  19. ^ Ulrich Theobald (2010-07-24). "Chinese Literature - Huainanzi 淮南子". www.chinaknowledge.de. Retrieved 2014-08-04. 
  20. ^ The Huainanzi refers to the "reigns" of government, much like Han Fei.
  21. ^ a b http://www2.iath.virginia.edu/saxon/servlet/SaxonServlet?source=xwomen/texts/hanfei.xml&style=xwomen/xsl/dynaxml.xsl&chunk.id=d2.29&toc.id=d2.29&doc.lang=bilingual
  22. ^ http://www2.iath.virginia.edu/saxon/servlet/SaxonServlet?source=xwomen/texts/hanfei.xml&style=xwomen/xsl/dynaxml.xsl&chunk.id=d2.24&toc.id=d2.24&doc.lang=bilingual
  23. ^ Deciding Between Two Legalistic Doctrines
  24. ^ Qin Hui. 《传统十论》 [Ten Expositions on Tradition]. 2004. (Chinese) Op. cit. Australian Centre on China and the World. The China Story "Qin Hui 秦晖". Accessed 26 September 2013.

Sources[edit]

  • Barbieri-Low, Anthony, trans. The Standard Measure of Shang Yang (344 B.C.) (2006)
  • Creel, H.G. “The Totalitarianism of the Legalists.” Chinese Thought from Confucius to Mao Tsê-tung. Chicago: The University of Chicago Press, 1953.
  • Duyvendak, J.J.L., trans. The Book of Lord Shang: A Classic of the Chinese School of Law. London: Probsthain, 1928.
  • Graham, A.C., Disputers of the TAO: Philosophical Argument in Ancient China (Open Court 1993). ISBN 0-8126-9087-7
  • Pu-hai, Shen. “Appendix C: The Shen Pu-hai Fragments.” Shen Pu-hai: A Chinese Political Philosopher of the Fourth Century B.C. Translated by Herrlee G. Creel. Chicago: The University of Chicago Press, 1974.
  • Qian, Sima. Records of the Grand Historian, Qin Dynasty. Translated by Burton Watson. New York: Columbia University Press, 1993.
  • Schwartz, Benjamin I. The World of Thought in Ancient China. Cambridge, MA: The Belknap Press of Harvard University Press, 1985.
  • Watson, Burton, trans. Han Fei Tzu: Basic Writings. New York: Columbia University Press, 1964.
  • Xinzhong, Yao, Introduction to Confucianism (2000). ISBN 978-0-521-64312-2
  • Potter, Pittman, From Leninist Discipline to Socialist Legalism : Peng Zhen on Law and Political Authority in the PRC2 (2003). ISBN 978-0-8047-4500-0

External links[edit]