Legalism (Chinese philosophy)

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

Legalism (Chinese: 法家; pinyin: fă jiā)[1] is a term used to categorize an intellectual current in the political philosophy of the Warring States period, and sometimes similar but less distinguishable activity in the preceding Spring and Autumn period (771-476 BC). Although its development is by no means a narrow phenomena, and the more Confucian rulers of other states could be termed as having been "Legalistic" on the basis of methodology, the term is most often associated with the distinct anti-Confucianism and increased legal emphasis of the later period, the more authoritarian Qin state, its ministers, and with the Emperor Qin Shi Huangdi who united China in 221 BC, ending the Warring States period. The "Legalist" tendency came to emphasize the development and precise, inflexible application of the institution of law under the aegis of the figure of the autocrat,[2][3] and conflicted increasingly with traditional and Confucian systems, with the result that it was later given its own philosophical classification.

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 regulation of political, economic, 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.

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.[7][8][9] Those termed as Legalists are referenced explicitly even in the modern era,[10] 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,[11][12][13][14] even while they themselves may not have self-identified with the term. Indeed, some often high ranking ministers,[15] and for example some Han period texts, such as the Huananzi,[16] even use some of the same terms and emphasized some of the same methods.[17] 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.

Origins[edit]

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.[18] There was not any organized school of "Legalism" other than the ministers and reforms of the different states building upon each other over time.[19] In fact, a basic tenet of the Book of Lord Shang being to "let the law teach", and with that, that it be well-known and easy to understand; later "Legalist" writers even 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 earlier 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 sometimes be a better appellation. The need for increased efficiency in state and economic affairs and the currents defining the Qin transformation had been long in development, with perhaps less-intense activity between the Chinese states being present since the Spring and Autumn period. Much earlier Zhou documents, not generally referenced as Legalist, also emphasize the use of reward and punishment characteristically associated with Lord Shang and Qin.

"Legalist" writings and reforms were very much syncretic, drawing on earlier intellectual activity like Daoism, Mohism and Confucianism. Though later Legalists sometimes 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. 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;[20] while Legalism considers law more in the context of fidelity to the monarch, prior to this law and morality were not considered separable.[21] The Book of Lord Shang sometimes even considers morality useless or harmful, serving to promote people for reasons other than merit.

Strictures of Han Fei[edit]

The school's best known contributor, Han Fei, synthesized the ideology of earlier proponents. His philosophy may be defined as using the 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.
  • 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]
  • 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.

Han Fei wrote, regarding the differing teachings of his predecessors,

The qualities of a ruler[edit]

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 public, rather than the private interest, comes first. The emperor’s very figure brought legitimacy.

As would later be included in the synthesis of Han Fei, the programs of Legalists such as Shen Dao (c. 350–275 BC) and Shen Buhai devalued the importance of the charismatic ruler by advising that skilful rulers hide their true intentions and feign nonchalance; to ensure that all of his words were revered, the wise ruler kept a low profile. Theoretically, by cloaking both his desires and his will, Emperors could force reliance upon their dictates and thereby check sycophancy.

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 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, intelligent ministers were the ruler's most important aide. While the minister’s duty was to understand specific affairs, the ruler was responsible for correctly judging the performance of ministers. 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 a combination of favours and punishments. Officials ought to be 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. But these laws were intended, by the Legalists, to be reform-oriented and innovative. In theory, if punishments were sufficiently heavy and the law was equally and impartially applied, neither the weak nor the powerful 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, weakened the power of the feudal lords, conquered and unified China's warring states into a single empire, created thirty-six administrative provinces, and standardized 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 observers of Chinese politics have argued that Legalist 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).[25] 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. ^ Hooker, Richard. "Legalism". 
  8. ^ "The Han Dynasty". Indiana University. Indiana University. 
  9. ^ Watkins, Thayer. "Legalism and the Legalists of Ancient China". applet-magic.com. San José State University. 
  10. ^ "Mao Tse-Tung on Legalism and Lord Shang: How China's ancient past influenced its future". 
  11. ^ "Legalism, Qin Empire and Han Dynasty". 
  12. ^ http://history.cultural-china.com/en/167H8721H13212.html.  Missing or empty |title= (help)
  13. ^ https://digitalcollections.anu.edu.au/html/1885/42049/3KWJin.html.  Missing or empty |title= (help)
  14. ^ http://www.eastasianhistory.org/sites/default/files/article-content/25-26/EAH25-26_02.pdf.  Missing or empty |title= (help)
  15. ^ Mark Edward Lewis, The Early Chinese Empiresi
  16. ^ Ulrich Theobald (2010-07-24). "Chinese Literature - Huainanzi 淮南子". www.chinaknowledge.de. Retrieved 2014-08-04. 
  17. ^ The Huainanzi refers to the "reigns" of government, much like Han Fei.
  18. ^ Ricket, Guanzi
  19. ^ John Emerson, A STUDY OF SHEN DAO. There are more sources that could be added.
  20. ^ http://ctext.org/shang-jun-shu/attention-to-law
  21. ^ http://link.springer.com/article/10.1007/s11463-011-0148-y?no-access=true
  22. ^ 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
  23. ^ 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
  24. ^ Deciding Between Two Legalistic Doctrines
  25. ^ 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]

  • 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]