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Legalism (Chinese philosophy)

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Statue of the legalist Shang Yang
Literal meaningSchool of law

Fajia (Chinese: 法家; pinyin: fǎjiā), or the fa school, often translated as Legalism,[1] is a school of mainly Warring States period classical Chinese philosophy, whose ideas contributed greatly to the formation of the bureaucratic Chinese empire, and Daoism, as prominent in the early Han. The later Han takes Guan Zhong as a forefather of the Fajia. Its more Legalistic figures include ministers Li Kui and Shang Yang, and more Daoistic figures Shen Buhai and philosopher Shen Dao, with the late Han Fei drawing on both. It is often characterized in the west along realist lines. The Qin to Tang were more characterized by its tradition.

Though the origins of the Chinese administrative system cannot be traced to any one person, prime minister Shen Buhai may have had more influence than any other for the construction of the merit system, and could be considered its founder. His philosophical successor Han Fei, regarded as their finest writer, wrote the most acclaimed of their texts, the Han Feizi, containing some of the earliest commentaries on the Daodejing. Sun Tzu's Art of War recommends Han Fei's concepts of power, technique, inaction, impartiality, punishment and reward.

Concerned largely with administrative and sociopolitical innovation, Shang Yang's reforms transformed the peripheral Qin state into a militarily powerful and strongly centralized kingdom, mobilizing the Qin to ultimate conquest of the other states of China in 221 BCE. With an administrative influence for the Qin dynasty, he had a formative influence for Chinese law. Succeeding emperors and reformers often followed the templates set by Han Fei, Shen Buhai and Shang Yang.

The Han Feizi's Lineage[edit]

Prior Sima Tan and Sima Qian, doctrines were identified only by teachers in connection with textual traditions; for those later termed Daoists, namely the early Laozi and Zhuangzi. Not forming large scale, organized, continuous schools of masters and disciples in the sense of the Mohists and Confucians, those later termed Daoists formed loose networks of master and disciple in the Warring States period, as text-based traditions brought together more fully in the Han dynasty. The writers of the first part of the Zhuangzi may not have been familiar with the Laozi. Only identifying doctrines by individuals in connection with textual traditions, it would be difficult to say that the Warring States conceived what would later be understood as Daoism, or the grouping that would later be termed Fajia or Legalism, with both categories termed by Sima Tan.[2][3]

Although propelling the Qin to power, central China likely did not know the remote Qin state's Shang Yang until at least the eve of imperial unification, with Han Fei his first reference outside the Qin state's own Book of Lord Shang. Knowing of Shen Buhai and Shen Dao, even the late Xun Kuang would not seem to know Shang Yang, despite traditional comparisons.[4] While the Warring States period contains figures that can otherwise be partly called Legalistic,[5] as Shang Yang's first reference, it is only possible to trace the conceptual origins of what would later be called the fa-school to the first direct connection between him and Shen Buhai, in chapter 43 of the Han Feizi, and is essentially attributable for their later Han dynasty combination under the school.[6] Accurately or not, they would later be taken as a source for Qin dynasty practices.[7][8]

Set against a backdrop of the late Warring States period's Hann state under the threat of Qin, Han Fei considered standards (fa) as law necessary, taking Shang Yang as representative, as well as the use of standards (fa) in administrative Technique, representative of his own state's Shen Buhai, considering neither sufficient.[9] Although exemplary in early bureaucracy, according to Han Fei, Shen Buhai had disorganized law in his newly formed Hann state,[10] and in contrast to the others, appears to have opposed penal punishment.[11]

With administrative developments long predating Shen Buhai himself,[12] their primarily administrative currents can roughly be explained as originating in the reforms of Warring States period mobilizations, with Shang Yang a primary example. Shen Buhai also was a military reformer, at least for defense, and is said to have maintained the security of his state.[13] Ideas like fa (laws,methods) were earlier developed by the Mohists, and Han Fei's figures are hardly the only ones who make of use it. With differences to later Daoism, Shen Buhai, Shen Dao, and Han Fei were all associated with early Daoism, with the eclectic Han Feizi a Daoist-influenced text.[14]

Discarding the use of his ears, eyes and wisdom, in contrast to Daoism as later understood, Shen Buhai's Dao or Way refers only to impartial administrative methods (fa). Quoting from the Analects, and making a more Confucianist usage of Wu wei 'reduced activity' in the sense of leaving duties to ministers, he teaches the ruler not to engage in actions that might harm the 'natural order of things', hiding his power and wit. Prior taken as earlier than the Daodejing, he would have to be reconsidered with the discovery of the Mawangdui Silk Texts, but was in any case said to be a Daoist. Han Fei's Chapter 5 otherwise quotes from his work alongside that of Laozi.[15]

Likely a well known philosopher in his time from the Jixia Academy,[16] the Mohists and Shen Dao are claimed by the Outer Zhuangzi as predecessor to Zhuang Zhou and Laozi.[17] and bares resemblance to the Daoism of the Zhuangzi. Hence, Benjamin I. Schwartz termed him a "Daoist", or figure subsumed under the Daojia (Dao-school) as termed by the Han historians, with early Daoist ideas found in eclectics like Han Fei and Xun Kuang.[18] He advocated that the realm be literally modeled off the natural world.[19]

Shen Dao was early remembered for his secondary subject of shi or "situational authority", of which he is spoken in Chapter 40 of the Han Feizi and incorporated into The Art of War, but only uses the term twice in his fragments. Taking his opponents as beclouded in various ways, Xun Kuang calls him "beclouded with fa", prominent in his work as shared with the others, teaching passivity and the elimination of desire.[20][21][22] Together with Shen Buhai and Han Fei, he bares resemblance to the recovered eclectic, early Boshu text in the Mawangdui Silk Texts, with daoistic ideas comparable more to Natural law.[23] Sinologist Herrlee G. Creel found no political following for him comparable to Shang Yang or Shen Buhai by the Han dynasty.[24]

Legalists or administrators?[edit]

Containing the first direct references to the Book of Lord Shang,[25] the first connection between Shang Yang and Shen Buhai can be seen in the Han Feizi,[26] contrasting the two in chapter 43. Han Fei takes Shen Buhai as focused on the use of fa (standards) in the administration, which he terms (shu) administrative Method or Technique, concerned with holding power, selecting ministers, and overseeing performance. He presents Shang Yang as focused on fa "standards" as including law. Han Fei considered both necessary.[9][27]

Contrasting with their own ideas, Shen Buhai is only glossed with Shang Yang as a penal figure in the Huainanzi, and in the debates of the Discourses on Salt and Iron.[28] In contrast to Shang Yang, no Han text discussing Shen Buhai by himself identifies him with penal law, and none pre-Han, only connecting him with control of the bureaucracy. Despite old arguments by Sinologist Creel, no text at least therefore attempts to individually obfuscate him a Legalist. With early Han Confucians like Jia Yi attempting to reform the bureaucracy in the early Han dynasty, Shen Buhai would be potentially influential for the imperial examination.

His administrative ideas were otherwise relevant for criminal records, and Liu Xiang at least conveniently assigns them all to a Han dynasty Fajia Legalist category in the imperial library, along with some six other texts, ending up a "major category in book catalogues", namely the Book of Han.[29] Purporting to quote Liu Xiang, he can still be seen in a fifth century text as a figure who advocated administrative technique, supervision and accountability to abolish the punishment of ministers.[30]

With the Shangjunshu making more uses of fa as law, Creel took Shang Yang as ancient China's Legalist school. However, Shang Yang's program was broader than law. With not all of Shang Yang's reforms indefinitely relevant, Han Fei elementalizes him under fa, and the Han dynasty largely connects him only with penal law.[31] Shang Yang's institutional reforms can be considered unprecedented, and his economic and political reforms were "unqestionably" more important than his own personal military achievements. The actual perspective of it's current was probably that of trying to create a rich, total state, with a powerful army, all geared for conquest, as expressed in the Book of Lord Shang; hence, translator Yuri Pines discusses it more along these lines than by the Legalist label. Penal law was one component, including a dominating focus on agriculture that was later abandoned together with his harsh punishments. Separately, the Han still recognized him as a military strategist, and was as much a military reformer in his own time.[32]

Han Fei[edit]

While the term Legalism has still seen some conventional usage in recent years, such as in Adventures in Chinese Realism, academia has avoided it for reasons which date back to Sinologist Herrlee G. Creel's 1961 Legalists or Administrators?, emphatically emphasizing that neither Shen Buhai, or even necessarily his followers, were Legalists. As Han Fei presents, while Shang Yang most commonly had fa (standards) as law, Shen Buhai uses fa (standards) in the administration, which Creel translated as method, with fa standards much broader than law.[33][34][35]

Shang Yang was said to be executed after the death of Duke Xiao of Qin. With the abandonment of his harsh punishments, the Shangjunshu's current attempted to innovate broader means of "empowering the state", including standards (fa) of promotion. The Book of Lord Shang represents some of it's currents reforms, otherwise containing pre-imperial ideas about what an order based on law and bureaucracy might look like once established. Inheriting it's current at the end Warring States period, Han Fei aspires to a state with law, wealth and a powerful military. On that front, Pines Stanford Encyclopedia discusses what he terms the 'fa thinkers' along realist lines, with bureaucracy the thinker's lasting contribution.[36]

More broadly, together with Shen Buhai and Shen Dao, Han Fei is primarily an administrator, not a legislator. Han Fei and Shen Dao make some use of fa (standards) as akin to law, and some use of reward and punishment, but generally use fa standards similarly to Shen Buhai: as an administrative technique.[37] Shen Buhai uses fa (standards) to compare official's duties and performances, and Han Fei often emphasizes fa in this sense, with a particular quotation from the Han Feizi as example:[38]

An enlightened ruler employs fa (standards) to pick his men; he does not select them himself. He employs fa to weigh their merit; he does not fathom it himself. Thus ability cannot be obscured nor failure prettified. If those who are [falsely] glorified cannot advance, and likewise those who are maligned cannot be set back, then there will be clear distinctions between lord and subject, and order will be easily [attained]. Thus the ruler can only use fa.

Blaming Shang Yang for too much reliance on law, Han Fei critiques him in much the same way that the Confucians critique law, holding that laws cannot practice themselves. Han Fei says: "Although the laws were rigorously implemented by the officials, the ruler at the apex lacked methods." [39][40]

Han Fei's choice to include law is not accidental, and is at least indirectly intended to benefit the people, insomuch as the state is benefited by way of order. It can (or has, by a law expert rather than Sinologist) be compared to a legislative rule of law inasmuch as it develops beyond purposes serving those of simply the ruler, generally operating separately from him once established. Han Fei says: "The enlightened ruler governs his officials; he does not govern the people." The ruler cannot jointly govern the people in a large state. Nor can his direct subordinates themselves do it. The ruler wields methods to control officials.[41]

The Book of Lord Shang itself addresses statutes mainly from an administrative standpoint, and addresses many administrative questions, including an agricultural mobilization, collective responsibility, and statist meritocracy.[42] Turning towards management, Chapter 25 of the Shangjunshu's so-called "Attention to law" advocates "strict reliance on law" (fa) mainly as "norms of promotion and demotion" to judge officials and thwart ministerial cliques, but not yet apparently having absorbed more complex methods of selection and appointment, still fell back on agriculture and war as the standard for promotion.[43]

Changing with the times[edit]

Taken as a commonality, what the Stanford Encyclopedia of Philosophy terms an evolutionary view of history has generally been associated more particularly with Gongsun Yang and Han Fei. However, sinologist Hansen also once took the Dao of Shen Dao and Han Fei as attempting to aim at what they took to be the '"actual" course of history'. Feng Youlan took the statesmen as fully understanding that needs change with the times and material circumstances. Admitting that people may have been more virtuous anciently, Han Fei believes that new problems require new solutions, with history as a process contrasting with the beliefs of Ancient China.[44]

In what A.C. Graham takes to be a "highly literary fiction", the Book of Lord Shang opens with a debate held by Duke Xiao of Qin, seeking to "consider the changes in the affairs of the age, inquire into the basis for correcting standards, and seek the Way to employ the people." Gongsun attempts to persuade the Duke to change with the times, with the Shangjunshu citing him as saying: "Orderly generations did not [follow] a single way; to benefit the state, one need not imitate antiquity."

Graham compares Han Fei in particular with the Malthusians, as "unique in seeking a historical cause of changing conditions", namely population growth, acknowledging that an underpopulated society only need moral ties. The Guanzi text sees punishment as unnecessary in ancient times with an abundance of resources, making it a question of poverty rather than human nature. Human nature is a Confucian issue. Graham otherwise considers the customs current of the time as having no significance to the statesmen, even if they may be willing to conform the government to them.[45]

Hu Shih took Xun Kuang, Han Fei and Li Si as "champions of the idea of progress through conscious human effort", with Li Si abolishing the feudal system, and unifying the empire, law, language, thought and belief, presenting a memorial to the throne in which he condemns all those who "refused to study the present and believed only in the ancients on whose authority they dared to criticize". With a quotation from Xun Kuang:[46]

You glorify Nature and meditate on her: Why not domesticate and regulate her? You follow Nature and sing her praise: Why not control her course and use it? ... Therefore, I say: To neglect man's effort and speculate about Nature, is to misunderstand the facts of the universe.

In contrast to Xun Kuang as the classically purported teacher of Han Fei and Li Si, Han Fei does not believe that a tendency to disorder demonstrates that people are evil or unruly.[47]

As a counterpoint, Han Fei and Shen Dao do still employ argumentative reference to 'sage kings'; Han Fei claims the distinction between the ruler's interests and private interests as said to date back to Cangjie, while government by Fa (standards) is said to date back to time immemorial. Han Fei considers the demarcation between public and private a "key element" in the "enlightened governance" of the purported former kings.[48]

School of names[edit]

Words and names are essential to administration, and discussion on the connection between names and realities were common to all schools in the classical period (500bce-150bce), as including the Mohists and posthumous categories of Daoists, Legalists and School of Names. Its earlier thinking was actually most developed by the Confucians, while later thinking was characterized by paradoxes. Shen Dao and Daoism question the premises of prior schools, in particular that of the Confucians and Mohists, representing an even higher degree of relativist skepticism. Nonetheless, together with the earlier Shen Buhai and Xun Kuang, Han Fei can still be compared with the earlier Confucian rectification of names.[49][50]

Dividing the schools (or categories) along elemental lines, as including Ming ("names", the usage of words in philosophy and administration including contracts) for the Mingjia School of Names, and fa (standards including law and method) for those later termed Fajia ("Legalists"),[51] Sima Qian originally glosses Shen Buhai, Shang Yang and Han Fei as adherents of the teaching of (xingming 刑名), or "form and name". Creel titled it "“performance and title”.[52] Although more or less representing an actual social category of debaters, as to what the school of names is, it is another abstract category invented by Sima Qian, with a grouping of philosopher administrators later placed under it by Liu Xiang (77–6BCE) and Liu Xin (c.46bce–23ce).[53] Engaging in discussions of "sameness and difference", such distinctions would naturally be useful in litigation and administration.[54]

The practices and doctrines of Shen Buhai, Han Fei and the school of names are all termed Mingshi (name and reality) and Xingming (form and name). Both groupings are posthumous, have both elements, and share the same concerns, evaluating bureaucratic performance, and the relations between ministers and supervisors. The school of names mingjia can also inaccurately be translated as Legalists,[55] using fa comparative models for litigation.[54] The Qin dynasty used comparative model manuals to guide penal legal procedure.[56] In either case, no one actually ruled primarily by penal law. Instituting clear laws in the sense of office divisions that cannot punish at will, penal law in the primarily administrative Qin dynasty supplemented the ritual order.[57] Penal law develops more in the Han dynasty that coins the terms.[58]

The Han Feizi's lineage[edit]

Shang Yang can be considered pioneering in the advancement of fa (standards) as law and governmental program more generally,[59] but his early administrative method more simply connects names with benefits like profit and fame, to try to convince people to pursue benefits in the interest of the state.[60] More advanced Names and Realities discussions date to the later Warring States period, after Shang Yang, Shen Buhai, and Mencius.[61]

Prior Shen Buhai, Xingming likely originates earlier in the school of names. The Zhan Guo Ce quotes one of their paradoxes: "Su Qin said to the King of Qin, 'Exponents of Xingming all say that a white horse is not a horse.'" Su Qin nonetheless took Gongsun Long's white horse paradox to be a Xingming administrative strategy. Other people were simply not intended to understand it.[62] Despite opposition to their paradoxes, the Han Feizi provides a white horse strategy: the chief minister of Yan pretended to see a white horse dash out the gate. All of his subordinates denied having seen anything, save one, who ran out and returned claiming to have seen it, identifying him as a flatterer.[63]

An early bureaucratic pioneer, Shen Buhai was not so much more advanced as he was more focused on bureaucracy, but can be taken as of the originator of the "Legalist doctrine of names" as understood by the later Han dynasty. As a basic explanation of Xingming, Han Fei terms Shen Buhai's fa Method, Technique (Shu), saying: "Method is to confer office in accordance with a candidate's capabilities; to hold achievement accountable to claim; and to examine the ability of the assembled ministers. This is controlled by the ruler."

Han Fei's his late tradition develops its own unique names and realities method under the term Xing-Ming. Naming individuals to their roles as ministers (e.g. "Steward of Cloaks"), in contrast to the earlier Confucians, Han Fei holds ministers accountable for their proposals, actions and performance. Their direct connection as an administrative function cannot be seen before Han Fei;[64] the late Warring States theories of Xun Kuang and the Mohists were still far more generalized;[65] Sima Tan proclaims the Daojia or "dao school" as adopting "the essentials of ming and fa".[51]

Xingming becomes the term for secretaries of government who had charge of the records of decisions in criminal matters in the Han Dynasty. Shen Buhai uses the earlier school of names method-term mingshi, or name and reality, while Han Fei uses the later Xing-Ming form and name term. Sima Qian and Liu Xiang nonetheless attribute it back to the doctrine of Shen Buhai, describing it as holding outcome accountable to claim. The Huainanzi regards it's literature as developing in the chaotic beginnings of Shen Buhai's state of Han.[66][62]

Eradicating punishments[edit]

Translator Yuri Pines from the Stanford Encyclopedia of Philosophy takes the Book of Lord Shang's final chapter 26 as reflecting administrative realities of the 'late preimperial and Imperial Qin', essentially congruous with knowledge of the Qin. Although seeking governance more broadly, protecting the people from abuse by ministers becomes more important than punishing the people. Taken as universally beneficial, in an attempt to deliver the "blessed eradication of punishments through punishments", clear laws are promulgated and taught that the people can use against ministers abusing the statutes, punishing them according to the penalties of the statute abused. Han Fei advocates the same, but is more focused on accomplishing it through the administrative power of the ruler.[67]

If at least part of the Han Feizi dates date to its period, the Shangjunshu could have circulated on the eve of unification. The work's adoption by the Han Feizi can give the appearance of a living current for the old harsh punishments of Shang Yang, that can be mistakenly imposed backward. Pine's work in the Stanford Encyclopedia accepts a long status quo within scholarship: Whatever events really transpired, the Qin had otherwise abandoned the harsh punishments of Shang Shang before unification. The Book of Lord Shang itself is not a homogeneous ideology, but shifts substantially over its development. As the work's first reference, the Han Feizi recalls its earlier Chapter 4, saying:[25][35]

Gongsun Yang said: "When [the state] implements punishments, inflicts heavy [punishments] on light [offenses]: then light [offenses] will not come, and heavy [crimes] will not arrive. This is called: 'eradicating punishments with punishments'.

As Pines recalls, even if the Shangjunshu only passingly suggests that a need for punishment would pass away, and a more moral driven order evolve, the Qin nonetheless did abandon them.[35] As a component of general colonization, the most common heavy punishment was expulsion to the new colonies, with exile considered a heavy punishment in ancient China. The Han engage in the same practice, transferring criminals to the frontiers for military service, with Emperor Wu and later emperors recruiting men sentenced to death for expeditionary armies. The Qin have mutilating punishments like nose cutting, but with tattooing as most common, with shame it's own heavy punishment in ancient China. They are not harsher for their time, and form a continuity with the early Han dynasty,[68] abolishing mutilations in 167 BC.[69][70]

Punishments in the Qin and early Han were commonly pardoned or redeemed in exchange for fines, labor or one to several aristocratic ranks, even up to the death penalty. Not the most common punishments, the Qin's mutilating punishment likely exist in part to create labor in agriculture, husbandry, workshops, and wall building.[71] Replacing mutilation, labor from one to five years becomes the common heavy punishment in early Imperial China, generally in building roads and canals.[72]

Han Feizi[edit]

For Han Fei, the power structure is unable to bare an autonomous ministerial practice of reward and punishment. Han Fei mainly targets ministerial infringements. His main argument for punishment by law, Chapter 7's The Two Handles, is that delegating reward and punishment to ministers has led to an erosion of power and collapse of states in his era, and should be monopolized, using severe punishment in an attempt to abolish ministerial infringements, and therefore punishment. Utilizing fa standards, Han Fei's ruler abandons personal preferences in reward and punishment out of self-preservation.[73]

While Han Fei believes that a benevolent government that does not punish will harm the law, and create confusion, he also believes that a violent and tyrannical ruler will create an irrational government, with conflict and rebellion.[74] Shen Dao, technically the first member of Han Fei's triad between the figures, at least by order of chapters, never suggests kinds of punishments, as that is not the point. The main point is that it would involve the ruler too much to decide them personally, exposing him to resentment. The ruler should decide punishments using fa standards.[75]

Han Fei does does not suggest kinds of punishments either, and would not seem to care about punishment as retribution itself. He only cares whether they work, and therefore end punishments. Although "benevolence and righteousness" may simply be "glittering words", other means can potentially be included. Recalling Shang Yang, in contrast to him Han Fei places a more equal emphasis on reward to encourage people and produce good results; he does not believe government can be established by punishment.[76] Opposed to the paradoxes of the 'sophist' administrators in the school of names, devoted to the use of writing in administration, punishment for Han Fei was still secondary to simply controlling ministers through techniques, in particular simply through written agreements.[77][78]


Emphasizing a dichotomy between the people and state, the Book of Lord Shang in particular has been regarded as anti-people, with alienating statements that a weak people makes a strong military. But, such statements are concentrated in a few chapters, and the work does still vacillate against ministerial abuses.[35] Michael Loewe still regarded the laws as primarily concerned with peace and order. They were harsh in Shang Yang's time mainly out of hope that people will no longer dare to break them.[79][35]

Sima Qian argues the Qin dynasty, relying on rigorous laws, as nonetheless still insufficiently rigorous for a completely consistent practice, suggesting them as not having always delivered justice as others understood it.[80] Still, from a modern perspective, it is "impossible" to deny at least the "'basic' justice of Qin laws". Rejecting the whims of individual ministers in favor of clear protocols, and insisting on forensic examinations, for an ancient society they are ultimately more definable by fairness than cruelty.

With contradicting evidences, as a last resort, officials could rely on beatings, but had to be reported and compared with evidence, and cannot actually punish without confession. With administration and judiciary not separated in ancient societies, the Qin develop the idea of the judge magistrate as a detective, emerging in the culture of early Han dynasty theater with judges as detectives aspiring to truth as justice.[81][82]

Inasmuch as Han Fei has modernly been related with the idea of justice, he opposes the early Confucian idea that ministers should be immune to penal law. With an at least incidental concern for the people, the Han Feizi is "adamant that blatant manipulation and subversion of law to the detriment of the state and ruler should never be tolerated":[83]

Those men who violated the laws, committed treason, and carried out major acts of evil always worked through some eminent and highly placed minister. And yet the laws and regulations are customarily designed to prevent evil among the humble and lowly people, and it is upon them alone that penalties and punishments fall. Hence the common people lose hope and are left with no place to air their grievances. Meanwhile the high ministers band together and work as one man to cloud the vision of the ruler.

Sources in Legalist Mythos[edit]

Jia Yi (200–169 BCE)[edit]

The Han dynasty mainly villainizes the First Emperor of China as arrogant and inflexible, blaming the second emperor for the fall of Qin. In the early Han, Jia Yi (200–169 BCE) associates the first Emperor with cruel punishments. Amongst figures that would otherwise be to taken to be his own Huang-Lao typified allies, Sima Qian glosses Jia Yi a scholar of both Shang Yang and Shen Buhai. While he likely had read both, he was a more likely proponent of Shen Buhai, supporting regulation of the bureaucracy and feudal lords.

Being both a Daoistic and Confucian doctrine, he favored the practice of Wu wei, or non-action by the ruler, against the practice of law. Despite advocating wuwei inaction by the ruler, and writing the Ten Crimes of Qin in opposition to harsh punishments, figures like Jia Yi were opposed for attempting to regulate the bureaucracy, leading to his banishment under ministerial pressure. The Emperor sent him to teach his sons. Mark Edward Lewis modernly characterized it as a politically motivated mythos.[84]

Liu An (179–122 bce)[edit]

Sinologists Herrlee G. Creel and Yuri Pines cite the Huainanzi, associated with Liu An (179–122 bce), as the earliest combinational gloss of Shen Buhai with Shang Yang,[85] comparing them as one person with harsh punishments to their own doctrine.[86] Positively receiving reunification of the empire, the text opposes centralized government and the class of scholar-officials. With ideas of wuwei nonaction, the Huainanzi recommends that the ruler put aside trivial matters, and follow the ways of Fuxi and Nüwa, abiding in Empty Nothingness and Pure Unity. Placing ritual specialists lower than heavenly prognosticators, and aiming to demonstrate how every text that came before it is now part of it's own integral unity, the Huainanzi posed a threat to the Han court. Chapter 1 is based most strongly on Laozi, but otherwise most strongly resonates with the Zhuangzi, with influences from the Hanfeizi, Lüshi chunqiu, Mozi, and Guanzi, the Classic of Poetry, etc.[87]

When the First Emperor of Qin conquered the world, he feared that he would not be able to defend it. Thus, he attacked the Rong border tribes, repaired the Great Wall, constructed passes and bridges, erected barricades and barriers, equipped himself with post stations and charioteers, and dispatched troops to guard the borders of his empire. When, however, the house of Liu Bang took possession of the world, it was as easy as turning a weight in the palm of your hand.

In ancient times, King Wu of Zhou... distributed the grain in the Juqiao granary, disbursed the wealth in the Deer Pavilion, destroyed the war drums and drumsticks, unbent his bows and cut their strings. He moved out of his palace and lived exposed to the wilds to demonstrate that life would be peaceful and simple. He lay down his waist sword and took up the breast tablet to demonstrate that he was free of enmity. As consequence, the entire world sang his praises and rejoiced in his rule while the Lords of the Land came bearing gifts of silk and seeking audiences with him. [His dynasty endured] for thirty-four generations without interruption.

Therefore the Laozi says: “Those good at shutting use no bolts, yet what they shut cannot be opened; those good at tying use no cords, yet what they tie cannot be unfastened.” 12.47

Sima Qian's Daojia[edit]

Using the concept of 'Jia' or 'family', in their Records of the Grand Historian, as completed under Sima Qian, he and Sima Tan invented the categories of Yin-Yang, Fajia, Mingjia and Daojia. Together with Mohism and Confucianism, they compare their purported strengths and weaknesses in promotion of what they dub the Daojia or Dao-school, which comes to mean Daoism a century after Sima Qian's death. They do not name anyone under them. If Sima Qian intended anyone for them, he probably intended that Han Fei, Shen Buhai and Shen Dao never be combined with the more penal Shang Yang, separating them from him categorically.[88]

Placing the biographies of Han Fei and Shen Buhai alongside Laozi and Zhuangzi, along with founding Han figures, Sima Qian would claim Han Fei, Shen Buhai and Shen Dao as having studied his same Huang-Lao ideology, or "Yellow Emperor and Laozi Daoism", simply giving Shang Yang his own chapter. The favored ideology of the early Han, and potentially Qin ruling classes in earlier form, it marks the beginnings of religious Daoism.[89][90]

Sima Qian would more likely be interpreting the Han Feizi through Chapter 5, which incorporates the works of Laozi and Shen Buhai, with Han Fei a third voice.[91] Han Fei attempts to convince the ruler to reduce his activity and adopt administrative government, enforcing contracts, verifying reports, and claiming ministerial achievements, the ministers trembling at his quiet repose. The Han Feizi more broadly depicts numerous dangers from ministers, attempting to convince the ruler that all such things as law, rather than luxury, are primarily intended to benefit his insufficiently powerful persona. It is modernly difficult to believe that what would otherwise be a legislative rule of law was only intended to benefit Han Fei's monarch.[92][93]

Dao is the beginning of the myriad things, the standard of right and wrong... by virtue of resting empty and reposed, the intelligent ruler waits for the course of nature to enforce itself... Empty, he knows the essence of fullness: reposed, he becomes the corrector of motion.

Sima Qian's work is clearly political, and all of his 'schools' descriptively flawed, orbiting his empty Dao-school, which "responds to the transformation of things".[51] It is clearly based on Shen Buhai and Han Fei's administrative practice of 'xingming', or form and name, functioning as a court of ministers contracted by a wu wei "inactive" ruler. With predecessors in the school of names, Shen Buhai and Han Fei are the first visible advocates of it's form of government, with Chapter 5 a primary example. Sima Qian asserts the First Emperor as proclaiming it's practice.[94] As a practice clearly derived of them, Han Emperors practiced wu wei reduced activity until the reign of Emperor Wu of Han (141-87bce), limiting themselves to the appointment of high ministers.[95]

As another reportedly dangerous minister from the empty darkness of the late Qin, Sima Qian depicts Imperial Chancellor Li Si as citing Han Fei's chapter 43 to the Qin dynasty's Second Emperor. Originally a Confucian doctrine, Li Si is depicted as mischaracterizing Shen Buhai's doctrine of leaving duties to ministers to encourage the indolence and subservience of the young Emperor, disastrously restoring the harsh laws of Shang Yang. Hailing from the small Hann state, Shen Buhai's "inactive" ruler was still supposed to take an active role in overseeing the administration; Shen Buhai advocates that he stop doing everyone elses work.[96] If it's event occurred, the Qin would otherwise appear to have prior abandoned the harsh punishments of Shang Yang before the founding of the Qin dynasty.[97]

The Fa School[edit]

Inasmuch as the term Legalism has been used modernly, Dingxin Zhao characterizes the Western Han as developing a Confucian-Legalist state.[98]

Liu An, as traditional author of the Huang-Lao typified Huainanzi, would be suppressed together with the Huang-Lao faction by other potential Han Feizi students, the Shang Yangian Emperor Wu of Han (reign 141-87bce), Gongsun Hong and Zhang Tang. Under Confucian factional pressure, Emperor Wu dismisses the Yellow Emperor Daoists, xingming theoreticians, and those of other philosophies, and discriminates against scholars of Shang Yang, Shen Buhai and Han Fei. When older, those officials who praised Shang Yang and Li Si and denounced Confucius were upheld. Together with that of the Confucians, the imperial examination system would be instituted through the likely influence of Shen Buhai and Han Fei, who advocated appointment by methodologies of performance checking.[99]

Undoubtedly associating Shang Yang primarily with penal law, no received Han text ever attempted to individually argue or obfuscate Shen Buhai a penal figure. Contrasting with Confucius and the Zhou dynasty, Dong Zhongshu (179–104 BC) simply associates Shen Buhai and Shang Yang with the Qin again as reportedly implementing the ideas of Han Fei. Asserting that the Qin, with high taxes and oppressive officials, had declined amidst a failure to punish criminals, he proceeds to associate laws, punishments and meritocratic appointment with the Zhou.[100]

With Sima Qian's categories already popular by their time, Imperial Archivists Liu Xiang (77–6BCE) and Liu Xin (c.46bce–23ce) placed Han Fei's figures. With Sima Qian's Fajia already characterized in a partisan way, they placed Han Fei's figures under it in the Imperial Library. They associate the schools with ancient departments, with the fa-school "probably originating in the department of prisons", whose descendants, then, failed to punish criminals. Fajia becomes a category of texts in the Han state's own Book of Han (111ce), with Dong Zhongshu's argument included in its Chapter 56 Biography.[101]

The fajia are strict and have little kindness, but their divisions between lord and subject, superior and inferior, cannot be improved upon… Fajia do not distinguish between kin and stranger, or differentiate between noble and base; all are judged as one by their fa. Thus they sunder the kindnesses of treating one’s kin as kin and honoring the honorable. It is a policy that could be practiced for a time, but not applied for long. But for honoring rulers and derogating subjects, and clarifying social divisions and offices so that no one is able to overstep them—none of the Hundred Schools could improve upon this.[102] Shiji 120:3291


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External links[edit]