Legalism (Chinese philosophy)

From Wikipedia, the free encyclopedia
Jump to: navigation, search
Legalism
Shangyang.jpg
Statue of the legalist Shang Yang
Chinese 法家
Literal meaning School of law

In ancient China, Legalism (Chinese: 法家; pinyin: fă jiā)[1] refers to a current in administrative[2] philosophy that culminated in an emphasis of rule by law. During the Spring and Autumn Period, ministers began reforms in-order to support the authority, state and military of the kings.[3] Reform accelerated during the Warring States period, developing an increasingly precise and inflexible legal code under the aegis of the figure of the autocrat, the development for which the trend is named.[4] The Qin state in particular reformed the aristocracy into an officialdom ranked by merit.[5][6]

In theory, if penalties were heavy and the law was equally and impartially applied, neither the weak nor the powerful would be able to escape consequences, and by emphasizing performance over sophistry legalists hoped to eliminate bureaucratic corruption and intrigues. Guided by Lord Shang's thought, Qin reformers developed the state's resources, weakened the power of the feudal lords, and unified China's warring states into a single empire under thirty-six administrative provinces with a standardized writing system.

The work of the most famous legalist thinker, Han Fei (韓非), synthesized the three central concepts of his predecessors:

  1. Fa (Chinese: 法; pinyin: fǎ; literally "law or principle"): The legal code should be written clearly and should be made public. All persons under the jurisdiction of the ruler are equal before the law. Laws should reward those who obey them and penalize accordingly those who do not. This ensures that actions taken are predictable. In addition, the legal system controls the state, not the ruler. If the law is guaranteed effectively, even a weak ruler will be strong.
  2. Shu (Chinese: 術; pinyin: shù; literally "method, tactic or art"): Special tactics or "secrets" should be taken by the ruler to ensure that others do not take state control. Thus, no one can predict the ruler's motivations, and therefore can not know what action can please him, except by following the law.
  3. Shi (Chinese: 勢; literally "legitimacy, power or charisma"): It is the position of the ruler, not the ruler himself, which holds the power.

Origins[edit]

Unlike the other ideologies of the era, there was not generally any organized school of "Legalism"; when in the Warring States period Qin made the Book of Lord Shang official and distributed it to the households, later "Legalists" would account this method of teaching as having been useless for the implementation of reform in improving agriculture. Legalism was classed by later Historians looking to systematize history as one of the four main schools of the Hundred Schools of Thought (along with Confucianism, Taoism, and Mohism), and like them continued to influence Chinese politics, but the term itself is applied posthumously.[7]

Anciently, moral and legal code were not thought of seperately. In the primacy of the Zhou, blood-tied vassal relations needed not be more than informal, and thus morality implicit (if not looser), "chivalry" only emerging in the conflict of the Spring and Autumn Period.[8] Together with the Chinese belief in the origins of the world in simplicity via the creative power of Heaven a la long-existing Wu Xing and Iching, it is not surprising that the The Book of Lord Shang relates order with simplicity and disoder with complexity, teaching that in an orderly state, "laws abolish laws" and "words abolish words";[9] stillness being attained and the creative purpose of law being accomplished, it goes unused, a "Taoistic" vision. Thus, together with the tradition of sage-kings, law is regarded as an intermediary tool initiated and used by the ruler for the attainment of supremacy and rectification of the world.[10] Consisting of methodologies for the ruler, "Fa-Chia" is often termed in the west as "political realist" and compared with Machiavelli.[11]

Though some reformers of the increasingly bureaucratic era grounded upon the emerging Taoism, and Legalists like Han Fei referenced and discussed it, by and large the concerns of "Legalists" like Shen Buhai may be called purely administrative if not areligious[12] and law is considered in the context of fidelity to the monarch.[13] The need for greater efficiency in state and economic affairs and the currents defining the Qin transformation had been long in development, with less-common hostility between the Chinese states present since the Spring and Autumn period. The reformers of the Qin state drew on earlier reforms of the Chu and Wei states, and much earlier Zhou dynasty documents, not generally referenced as Legalist, also emphasize the use of reward and penalty characteristically associated with Lord Shang and Qin.

Far from being discrete, "Legalist" writings and reforms were very much syncretic, drawing on 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).

Law[edit]

  • Fa (; p 'fǎ', lit. 'law'):

Shang Yang was known for his strict application of law, and the Book of Lord Shang stresses that people under the ruler be made equal before the law, if not for proposed benefits to the state immediately than at least eventually, to enhance the authority of the sovereign. Accepting Shang Yang’s emphasis on the standardization of weights and measures, Qin rulers divided families into smaller households, and adopted, in varying degrees, the practice that no individual in the state should be above the law (and ensuring harsh penalties for all cases of dissent).

A basic tenet of the Book of Lord Shang being that law be made public, well-known and easy to understand, it emphasized "letting the law teach". While Confucianism emphasizes ritual and considers morality an independent entity to be followed and developed quite apart from law inorder to cultivate "virtue", a ruler using "legalism" prescribes a legal code to settle moral disputes.[15] The Book of Lord Shang often considers morality even useless or harmful, serving to promote people for reasons other than merit, instead recommending that the code be clearly written and public. The system of law was used to run the state, applying penalty and reward, generally guaranteeing that actions taken are systematically predictable; the idea being held that, if the law is successfully enforced, even a weak ruler will be strong.

People in Qin ultimately had different rights according to their rank for purposes of reward and penalty. However, this was reform oriented. Shang Yang's legal code 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 practice abandoned as Qin became more successful). 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 Qin, an occurrence that would never happen in the other six states.

Stressing that ministers and other officials too often sought favours from foreign powers by abusing their positions, Han Fei, urged rulers to control Ministers by a combination of favours and penalties, and ensuring that ministers' accomplishments were neither greater than nor inferior to their requested 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.

Tact[edit]

  • Shu (; p 'shù', lit. 'method'):

As Allyn Ricket in Guanzi points out, the term "Legalist" has been used as descriptive of the writings and policies of earlier Spring and Autumn period (771-476 BCE) ministers even where "Realist Confucian" might make a better appellation. With law not having been developed as a primary tool until the Warring States Period, Sinologists (like Creel) have criticized the use of the term "Legalist", preferring "realist". The long-lasting Zhou dynasty had long successfully relied on a system of less methodical personal interactions based on the Emperor before it's eventual decay,[16] and early realists did not have always have a standardized or comprehensive legal code to rely upon, though some instead emphasized the importance of the social order or the orders of the Sovereign.[7]

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), returning to the thought of earlier reformers, demanded more of the wise ruler, and 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. Earlier important Spring and Autumn period "Legalist" Shen Buhai – a minister from the state of Han sometimes called the "founder" of "Legalism", formalized the concept of shu, the bureaucratic model of administration, without even mentioning law. In his program, intelligent ministers were the ruler's most important aid; but while the minister’s duty was to understand specific affairs, the ruler was still responsible for correctly judging the performance of ministers, something the later Han Fei recommended be systematized.

To ensure that all of his words were revered, a wise was to keep a low profile. Advising that skillful rulers hide their true intentions by feigning nonchalance and identifying their position with the words of inferiors, and later the they use law instead of act directly, Legalism ultimately devalued the importance of charisma, thereby reducing the burden on the ruler. Special tactics and 'secrets' are employed by the ruler to make sure others don't take over control of the state. Theoretically, by cloaking both his desires and his will, Emperors could force reliance upon their dictates and thereby check sycophancy. If no one can fathom the ruler's motivations, no one can know which behaviour might help them get ahead other than following the law and trying to perform meritously.[10]

Position[edit]

  • Shi (; p 'shì', lit.'legitimacy'):

The Legalists emphasized that the head of state was endowed with shi, the "mystery of authority". The emperor’s very figure brought legitimacy. But 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 that the ruler should hold the powers of reward and penalty, and that these should not be performed except by ruler's legal code; if any minister attained one or the other, they would usurp the state.

Decline[edit]

According to the Han's Grand Historian Sima Qian (c. 145–86 BCE), 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, but he did not necessarily follow all of the Legalists’ advice on the role of the ruler. Though the Emperor endorsed as a favourite the compilation of Han Fei, it came late to Qin history, and the government's base rested more on the method of law via Shang Yang. Reliance on the same governmental mode after the conquest, namely the rigid legal system, was generally regarded as the cause of Qin's downfall.

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

In their time, Qin and the tendency toward legalism were demonized by Confucian scholars for "dangerously lacking in Confucian scholars;"[19] later, because of actions by the Emperor Qin Shi Huangdi and conflict with some, probably non-Confucian scholars;[20][21][22] and later again by then-endorsed post-Qin Confucian scholars for the conflict of legal emphasis with the then-Confucian interests regarding social norms, organic classism and emphasis on ritual regarded as extraneous by legalistic philosophy.

With the fall of Qin, associated legalism ceased to be an independent trend of thought. But legalistic practice had compounded into necessity, and continued to influence or determine Chinese administration thereafter, though often masked by Confucianism.[23][24][25] Both ancient and modern observers of Chinese politics have argued that Legalism still play a major role in government. Post-Qin historians, in systematizing history, distinguished philosophy emphasizing law from the also sometimes maligned Taoism, while Chinese politics overlooked the use of more benign administrative developments needed in the government of a unified China.

Qin Hui memorably glossed the reality of imperial China as "Confucian on the outside, but Legalist within" (, p Rú biǎo, Fǎ lǐ).[26] Confucian values, and, During the Sui and Tang dynasty, Buddhist ideas, were used to sugarcoat the external face of the Imperial system's Legalist method. The Sui dynasty's policies during its efforts to reunify China might called "legalistic" and resemble the Qin in some ways, carrying out mass-labour projects in agriculture, said tendency being 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.

Those termed as Legalists are referenced explicitly even in the modern era,[27] with Legalism and Confucianism having been a subject for debate and discussion by Chinese Communists, and the term is now sometimes used by modern scholars to describe policy later than that of the Qin dynasty, such as that of the Han, Wei, Shu Han, or Sui Dynasties,[28][29][30][31] even while they themselves may not have self-identified with the term. Indeed, some often high ranking ministers,[32] and for example some Han period texts, such as the Huainanzi,[33] even use some of the same terms and emphasized some of the same methods.[34] Thus, while it has been used primarily by Chinese historians as a categorizer for Qin Warring States period and secondly Spring and Autumn policy, the use of the term as a descriptor has significantly broadened.

References[edit]

  1. ^ https://www.sas.upenn.edu/ealc/system/files/bio/%5Buser-raw%5D/papers.  Missing or empty |title= (help)
  2. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration
  3. ^ Rickett, Guanzi
  4. ^ Book of Lord Shang and Han Fei
  5. ^ "Legalism and Huang-Lao Thought". Indiana University. Indiana University. 
  6. ^ Pines, Yuri. "Submerged by Absolute Power: The Ruler’s Predicament in the Han Feizi". 
  7. ^ a b Ricket, Guanzi
  8. ^ Origins of Statecraft in China, Creel
  9. ^ http://ctext.org/shang-jun-shu/making-orders-strict
  10. ^ a b http://www.chinaorbit.com/china-culture/chinese-philosophy/legalism.html
  11. ^ "Han Fei-tzu (d. 233 BCE): Legalist Views on Good Government". 
  12. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration
  13. ^ http://link.springer.com/article/10.1007/s11463-011-0148-y?no-access=true
  14. ^ 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
  15. ^ http://ctext.org/shang-jun-shu/cultivation-of-the-right-standard
  16. ^ Origins of Statecraft in China
  17. ^ http://ctext.org/shang-jun-shu/interdicts-and-encouragements
  18. ^ Deciding Between Two Legalistic Doctrines
  19. ^ John Knoblock Xunzi p.29 ("Qiangguo," 16.6).
  20. ^ Goldin 2005 p.151
  21. ^ Nylan 2001 p.29-30
  22. ^ Kern 2010 http://books.google.com/books?id=qY32-zfTU9AC&dq=cambridge+history+of+china+burning+books&q=%22status+of+the+Classics%22#v=snippet&q=%22status%20of%20the%20Classics%22&f=false 111-112
  23. ^ Hooker, Richard. "Legalism". 
  24. ^ "The Han Dynasty". Indiana University. Indiana University. 
  25. ^ Watkins, Thayer. "Legalism and the Legalists of Ancient China". applet-magic.com. San José State University. 
  26. ^ 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.
  27. ^ "Mao Tse-Tung on Legalism and Lord Shang: How China's ancient past influenced its future". 
  28. ^ "Legalism, Qin Empire and Han Dynasty". 
  29. ^ http://history.cultural-china.com/en/167H8721H13212.html.  Missing or empty |title= (help)
  30. ^ https://digitalcollections.anu.edu.au/html/1885/42049/3KWJin.html.  Missing or empty |title= (help)
  31. ^ http://www.eastasianhistory.org/sites/default/files/article-content/25-26/EAH25-26_02.pdf.  Missing or empty |title= (help)
  32. ^ Mark Edward Lewis, The Early Chinese Empiresi
  33. ^ Ulrich Theobald (2010-07-24). "Chinese Literature - Huainanzi 淮南子". www.chinaknowledge.de. Retrieved 2014-08-04. 
  34. ^ The Huainanzi refers to the "reigns" of government, much like Han Fei.

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]