Legalism (Chinese philosophy)

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

Dating back to early China, Legalism (Chinese: 法家; pinyin: fă jiā) refers to a current of administrative Chinese Philosophy and reforms that came to emphasize rule by law. During the Spring and Autumn Period, ministers began reforms in-order to support the authority, states and military of the kings.[1] Reform accelerated during the Warring States period, with the Qin developing the beginnings of a legal code into an expansive if undiscriminating institution, generally defining the trend.

Following Lord Shang's reforms, Qin Legalism developed the industriousness of the people and resources of the state, weakened the power of the feudal lords and reformed the aristocracy into an officialdom ranked by merit, and unified China's warring states into a single empire under thirty-six administrative provinces with a standardized writing system. Relying on law,[2] the Han Feizi, synthesis of the most famous Legalist thinker Han Fei (韓非), systematizes[3] the three central concepts of his predecessors for practice under the aegis of the figure of the autocrat:[4]

  1. Shi (Chinese: 勢; pinyin: shì; literally "legitimacy, power or charisma"): In the philosophy of Shen Dao and later philosophers, the restraining hold on the state generates the stability necessary for any rule at all. The ruler exists to monopolize authority in-order to prevent it's abuse by feudal magnates.[5] Reflecting the preceding Zhou Dynasty's stability and means, this masculine character represents force or military strength, the appearances or influence of the ruler, and the state's situation or trend.[6] In the Book of Lord Shang, a strong inherited position supports even an ineffectual ruler, while a competent ruler without position effects nothing.[7]
  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 gain not control of the state. Beginning to withdraw from affairs except to manage the course of ministers, the ruler following the philosophy of Shen Buhai and the later Han Fei obscures their motivations. By this means no can subvert the state through sycophancy toward him, but may only try to advance by heeding orders, under Han Fei translated into law enacted as the proposed policies of the ministers.
  3. Fa (Chinese: 法; pinyin: fǎ; literally "law or principle"): Fa Originally has a broader meaning of standards;[8] in Chinese administrative philosophy, these would be the standards of the ruler.[9] In the development of Legalism, Han Fei credits Yang with Ding Fa(定法), or fixing the standards, which were to be written clearly, made public and applied throughout the state. All persons under the jurisdiction of the ruler were equal before the law, referred to as Yi Min(一民), or treating the people as one.[10] The Book of Lord Shang emphasizes the use of laws to reward those who obey them and penalize accordingly those who do not, institutionalizing the standards set by the ruler and acting as a guarantor for actions taken. The ruler generally uses the legal system to control the state; if the law is applied effectively, even a weak ruler will be strong, effectively having the same purpose as and regenerating the preceding principles.

Terminology[edit]

The term Legalist was applied by post-Qin historians looking to systematize history in reference to the later reformers of the period, classifying it as one of the four main schools of the Hundred Schools of Thought along with Confucianism, Taoism, and Mohism.[11] Like them it continued to influence Chinese politics, but the term itself is applied posthumously.[12] There was not generally any organized school of "Legalism"; when the Warring States period Qin state made the Book of Lord Shang official and distributed it to the households, later Qin reformers would account this as having been a useless means of teaching for the improvement of agriculture.

As the later 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.[13] The legal aspect of administration itself came late to the era, making it an odd term for earlier reformers of similar style lacking in the innovation of law. With law only having been developed as a significant methodology late in the era, Sinologists like Creel prefer "Realist"[14] tracing the reform developments of the later era as far back as the early Zhou.[15]

Background and Early History[edit]

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 and the Shang Dynasty 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.[16][17]

Far from being discrete, the later Legalist writings and reforms especially were very much syncretic, drawing on intellectual activity such as that of the other three "schools". Though later Legalists sometimes rejected or even vilified Confucianism's private morality or Mohism's watchful justice of ghosts, the aims and similar methods of both Mohism and Legalism were antithetical to tradition,[18] emphasizing authority outside the family. Ministers Li Si and Han Fei Zi were taught by heterodox Confucian Xunzi[19] who, rejecting the innate human goodness or morality of Mencius, emphasized the importance of education and ritual, which the Legalists re-simplified into Fa.

Reformers often flouted traditional morality inorder to advance reform, though this is more pronounced in the later Legalists. As said in the Book of Lord Shang, anciently moral and legal code were not thought of separately. Discourse on virtue only emerges with the Zhou "Mandate of Heaven". Even in the early Zhou morality was implicit if not looser, only tightening with the tracking of patrilineal descent, though Yang's only quarrel with the latter principle was to render it utilitarian.

In the primacy of the Zhou, blood-tied vassal relations needed not be more than informal, "chivalry" only emerging in the conflict of the Spring and Autumn Period.[20] While Yang made no argument against stratification, Han Fei notes as much, and now relating with Taoism, argues against the ultimate veracity of complex moral systems on the basis of no such complexity existing in congenial familial relations,[21] even as spread out as the Zhou were. In one instance Fei espouses Taoist utopia as the product of Legalism,[22] though this sort of argument is generally only considered to have been supplementary to those of immediate practicality.[23]

Reformers departing from traditional morality often fell back on Cosmology to buffer their arguments;[24] the later Han Fei related with Taoism, and both Taoism and Legalism drew upon older, long-standing beliefs in the origins of the world in simplicity via the creative power of Heaven a la long-existing Wu Xing and Iching. Altogether, though operating in a more stratified context, it not surprisingly that the The Book of Lord Shang relates order with simplicity and disorder with complexity, teaching that in an orderly state, "laws abolish laws" and "words abolish words";[25] stillness being attained and the creative purpose of law being accomplished, it goes unused. 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.[26] Though using rarer methods Qin still regarded itself as a rehabilitater of Chinese civilization, referring to its coming era as the "water" phase of Wu Xing to Zhou's "fire" phase.[27]

Despite this background, and though some Legalists may even be said to have grounded upon the emerging philosophy of Taoism, by and large their concerns may be called purely administrative if not areligious,[28] and these dialectical methods, though espousing Taost utopias are criticized by Taoist documents like the Zhuangzi as not resting in "prefect natural action". Consisting of methodologies for the ruler, "Fa-Jia" is often termed in the west as "political realist" and compared with Machiavelli[29] and law is considered more in the context of fidelity to the monarch than any moral question of the Confucians; indeed, Shen Buhai does not mention virtue.[30]

Position and Tact[edit]

Early Chinese reformers did not have always have much of a standardized or comprehensive code to rely upon, instead emphasizing the importance of the "five classes" or the orders of the Sovereign;[33] the long-lasting Zhou dynasty had long successfully relied on a system of less methodical personal interactions based on the Emperor and the then-familial and trustworthy aristocracy.[34]

Realists like Shen Dao 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 rulers that is powerful, not the rulers themselves. Therefore, analysis of the trends, the context, and the facts are essential for a real ruler. 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 labour 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. In 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.

Shen Dao and Han Fei wrote that the ruler should hold the powers of reward and penalty; if anyone freely exercised one or the other, they would usurp the state. Under Han Fei, these should not be executed except by the ruler's legal code. Special tactics and 'secrets' are employed by the ruler to make sure others don't take over control of the state. To ensure that all of his words were revered, a wise was to keep a low profile. Advising that skilful rulers hide their true intentions by feigning nonchalance and identifying their position with the words of inferiors, and later by the use of law instead of acting directly, Legalism ultimately devalued the importance of charisma, thereby reducing the burden on the ruler. 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 meritoriously.[26]

Attracted by reform-oriented rulers, officials, many of whom were disenfranchised or opportunist aristocrats. became more important with the decay of the Zhou line and intermittent conflict of the Spring and Autumn period. Early "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. For Shen Buhai, the primary good of the ruler is technique.[35] 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.

While the later Shang Yang (Prime Minister of Duke Xiao of Qin), relying on law, 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. Stressing that ministers and other officials too often sought favours from foreign powers by abusing their positions, he 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.

Shang Yang and the Development of Legalism Proper[edit]

  • Fa (; p 'fǎ', lit. 'law'):

Following an order inviting capable men to the court in-order to recover territory to the east and restore the heritage of Duke Mu of Qin,[36] the Qin king established Shang Yang as a reformer. Yang imported and developed the innovations of other states, establishing a draconian legal system in-order to facilitate agriculture and is said to have instituted generally the ability to buy and sell land. To encourage the development uncultivated lands, Qin being underpopulated, the book written after his policies proscribes the temporary abolition of taxes on new immigrants and the determination of land qualities for taxation, stating that even the lazy, the merchants, the criminals and innkeepers would turn farmers under the right conditions.

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". Intending that actions taken in Qin become systematically predictable, Yang imported and elaborated a legal code of penalty and reward to develop the resources of the state. Yang held that if the law is successfully enforced, even a weak ruler will be strong. 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 hoped to eliminate bureaucratic corruption and intrigues. Accepting 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).

Following the Book's doctrine of reward and penalty, people in Qin were granted rights according to their rank. This was reform oriented; 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. A farmer could gain rank according to his grain. Lü Buwei, originally a merchant, was able to become Chancellor of Qin, something that would never occur in the other six states which generally only gave higher posts to the well-connected.

The doctrine of strict legal application in the Book of Lord Shang stresses that people under the ruler become equal before the law, if not for proposed benefits to the state immediately than at least eventually to enhance the authority of the sovereign. While Confucianism emphasizes ritual and considers morality in a context of cultivating "virtue" quite apart from law, the Book of Lord Shang, often considering private morality even useless or harmful and serving to promote people for reasons other than merit, instead prescribes a legal code to settle moral disputes, recommending that it be clearly written and public.[37]

Decline[edit]

The later Sima Tan, though hailing "fa jia" for “honoring rulers and derogating subjects, and clearly distinguishing offices so that no one can overstep [his responsibilities]”, criticized the Legalist approach as “a one-time policy that could not be constantly applied”.[38]

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

However, the Book of Lord Shang does not hold the principle of law to be a suitable base for a large state, it's application thereto described only as having a shrinking effect. Considering law one tool among others, Shang's follower's never envisioned the extent to which Qin's later reformers would attempt to make it a permanent feature if not revolutionary project, holding that matters benefiting from an overarching presence ought already be dealt with in the course of its development, attaining a natural mode whether by post-conquest enfeoffment or mutual responsibility. But the Qin government's base rested on the innovation of law, and though reiterating the other methods, the later Han Fei nonetheless magnifies it's importance, ending in depictions of Taoist utopia.

Whether a return to the aristocratic distribution of the Zhou would have worked or not, the first Emperor believed it to be the cause of disintegration, and opted to maintain the unitarian, bureaucratic legal application over its area. Though lending itself to the development of a smaller state, incidences resultant of it's rigid impersonality mounted and resistance to it began soon after the Emperor's death. No alternative or admixture was secured before the fall of the dynasty.[40]

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 follow all of the Legalists’ advice on the role of the ruler, continuing this line to the point of not even interacting with his own ministers, leaving this to the Prime Minister who subsequently altered the royal succession after the Emperor's death to enthrone an incompetent. In a certain sense following one of the philosophical premises for the purpose of law, this heir tried to cause the system to run itself by punishing bad news.

Legacy[edit]

In their time, Qin and the tendency toward legalism were demonized by Confucian scholars for "dangerously lacking in Confucian scholars;"[41] later, because of actions by the Emperor Qin Shi Huangdi and conflict with some, probably non-Confucian scholars;[42][43][44] 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. The Zhuangzhi criticized Legalist administrative settling of morality as "a mantis trying to restrain a wagon-wheel."

With the fall of Qin, associated legalism ceased to be an independent trend of thought. But realist methods had compounded into necessity, and continued to influence or determine Chinese administration thereafter, though often masked by Confucianism.[45][46][47] Both ancient and modern observers of Chinese politics have argued that Legalism still plays a major role in government. Post-Qin historians marginalized realist philosophy, giving it a superficial categorization to distinguish it from the also sometimes maligned Taoism and resigning it to the past, while Chinese politics demonized but overlooked the use of both in the benign administrative developments needed for the government of a unified China, though Taoism made a return in the Tang.

Qin Hui memorably glossed the reality of imperial China as "Confucian on the outside, but Legalist within" (, p Rú biǎo, Fǎ lǐ).[48] In the decay of the Han, reformers talked of a return to more legalistic ways, with Liu Bei described, like the Chinese state, as inwardly Legalist while Confucian in appearance. 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,[49] 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,[50][51][52] even while they themselves may not have self-identified with the term. Indeed, some often high ranking ministers,[53] and for example some Han period texts, such as the Huainanzi,[54] even use some of the same terms and emphasized some of the same methods.[55] 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. ^ Rickett, Guanzi
  2. ^ Power in the Qin Dynasty http://triceratops.brynmawr.edu/dspace/bitstream/handle/10066/5251/2010OuelletteP.pdf?sequence=1
  3. ^ http://english.eastday.com/e/zx/userobject1ai4046204.html
  4. ^ http://www.academia.edu/2714323/2013_Submerged_by_Absolute_Power_The_Ruler_s_Predicament_in_the_Han_Feizi
  5. ^ http://plato.stanford.edu/entries/chinese-legalism/
  6. ^ http://www.mdbg.net/chindict/chindict.php?page=worddict&wdrst=0&wdqb=%E5%8B%A2
  7. ^ http://ctext.org/shang-jun-shu/interdicts-and-encouragements
  8. ^ http://plato.stanford.edu/entries/chinese-legalism/
  9. ^ http://ctext.org/shang-jun-shu/cultivation-of-the-right-standard
  10. ^ http://www.philosophy.hku.hk/ch/Lord%20Shang.htm
  11. ^ Persistent Misconceptions about Chinese Legalism https://www.sas.upenn.edu/ealc/system/files/bio/%5Buser-raw%5D/papers/Persistent%20Misconceptions%20about%20Chinese%20Legalism.pdf
  12. ^ Rickett, Guanzi
  13. ^ Rickett, Guanzi
  14. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration, Journal of Chinese Philosophy Volume 1
  15. ^ Origins of Statecraft in China
  16. ^ http://www.duhaime.org/LawMuseum/LawArticle-363/China--A-Legal-History.aspx
  17. ^ Legge - The Chinese Classics
  18. ^ http://www.iun.edu/~hisdcl/h425/legalists2.htm
  19. ^ http://english.eastday.com/e/zx/userobject1ai4046204.html
  20. ^ Origins of Statecraft in China, Creel
  21. ^ Chapter XX. Commentaries on Lao Tzŭ's Teachings http://www2.iath.virginia.edu/saxon/servlet/SaxonServlet?source=xwomen/texts/hanfei.xml&style=xwomen/xsl/dynaxml.xsl&chunk.id=d2.20&toc.depth=1&toc.id=0&doc.lang=bilingual
  22. ^ Chapter XXIX. The Principal Features of Legalism http://www2.iath.virginia.edu/saxon/servlet/SaxonServlet?source=xwomen/texts/hanfei.xml&style=xwomen/xsl/dynaxml.xsl&chunk.id=d2.29&toc.depth=1&toc.id=0&doc.lang=bilingual
  23. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration, Journal of Chinese Philosophy Volume 1
  24. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration, Journal of Chinese Philosophy Volume 1
  25. ^ "Shang Jun Shu : Making Orders Strict - Chinese Text Project". Chinese Text Project. Retrieved 15 April 2015. 
  26. ^ a b Jeki. "China : Legalism". {$pageCopy}. Retrieved 15 April 2015. 
  27. ^ Early Chinese Empires
  28. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration
  29. ^ "Han Fei-tzu (d. 233 BCE): Legalist Views on Good Government". 
  30. ^ Creel, Shen Pu Hai, Journal of Chinese Philosophy Volume 1
  31. ^ a b "XWomen CONTENT". virginia.edu. Retrieved 15 April 2015. 
  32. ^ "Shang Jun Shu : Interdicts and Encouragements - Chinese Text Project". Chinese Text Project. Retrieved 15 April 2015. 
  33. ^ Ricket, Guanzi
  34. ^ Origins of Statecraft in China
  35. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration, Journal of Chinese Philosophy Volume 1
  36. ^ J. J.-L. DUYVENDAK
  37. ^ "Shang Jun Shu : Cultivation of the Right Standard - Chinese Text Project". Chinese Text Project. Retrieved 15 April 2015. 
  38. ^ http://plato.stanford.edu/entries/chinese-legalism/(Shiji 130: 3289–3291; for translations cf. Smith 2003: 141; Goldin 2011: 89).
  39. ^ Deciding Between Two Legalistic Doctrines
  40. ^ http://www.chinese.cn/people/en/article/2010-03/29/content_118248.htm
  41. ^ John Knoblock Xunzi p.29 ("Qiangguo," 16.6).
  42. ^ Goldin 2005 p.151
  43. ^ Nylan 2001 p.29-30
  44. ^ 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
  45. ^ Hooker, Richard. "Legalism". 
  46. ^ "The Han Dynasty" (PDF). Indiana University. Indiana University. 
  47. ^ Watkins, Thayer. "Legalism and the Legalists of Ancient China". applet-magic.com. San José State University. 
  48. ^ 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.
  49. ^ "Mao Tse-Tung on Legalism and Lord Shang: How China's ancient past influenced its future". 
  50. ^ "Legalism, Qin Empire and Han Dynasty". 
  51. ^ "Decline of Legalism". cultural-china.com. Retrieved 15 April 2015. 
  52. ^ "The Three Kingdoms and Western Jin, Rafe de Crespigny Publications, Faculty of Asian Studies, ANU". anu.edu.au. Retrieved 15 April 2015. 
  53. ^ Mark Edward Lewis, The Early Chinese Empiresi
  54. ^ Ulrich Theobald (2010-07-24). "Chinese Literature - Huainanzi 淮南子". www.chinaknowledge.de. Retrieved 2014-08-04. 
  55. ^ 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.
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  • Schwartz, Benjamin I. The World of Thought in Ancient China. Cambridge, MA: The Belknap Press of Harvard University Press, 1985.
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  • 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]