Legalism (Chinese philosophy)

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Legalism
Shangyang.jpg
Statue of pivotal reformer Shang Yang
Chinese 法家
Literal meaning The two basic meanings of Fa are "method" and "standard." Jia can mean "school of thought," but also "specialist" or "expert", this being the usage that has survived in modern Chinese.[1][2][3]

Fǎ-Jiā (法家), or more rarely Xìng-Míng (刑名), usually (although inaccurately)[4][5] translated as Legalism is a classical school of Chinese philosophy, the former term often dealing in penal law, the latter in administrative method.[6] Termed in the Han Dynasty,[7] it groups thinkers crucial to laying the "intellectual and ideological foundations of the traditional Chinese bureaucratic empire",[8][9] tied together by their overriding concern for political reform,[10] and aim of a realistic consolidation of the wealth and power of the state, army and autocratic ruler,[11] generally arguing for fixed and transparent rules.[12] Many modern scholars consider its representatives, and Han Fei in particular as theorists of "monarchic despotism", distinguished by their anti-ministerial stance.[13][14] Rejecting their Confucian contemporaries espousal of a regime based solely on the charisma of the aristocrats,[15] they attempted to create mechanically reliable, if not foolproof institutions for the control of officials administering the state,[16] articulating political technique that would ultimately form guiding principles for the First Emperor, Qin Shi Huang.[17] Often compared with modern social sciences,[18][19][20] they have been regarded by the Chinese as having three tendencies: the enforcement of law, the manipulation of statecraft, and the exercise of power.[21][22][23][24][25] Highly effective in the short run, their dismissiveness of traditional culture, morality and "anti-ministerial" approach earned them enmity,[26][27] and with the fall of the Qin dynasty the imperial administration would often be overlaid with Confucian ideology and customs.[27]

That there is any evidence at all in the ancient world for a field of management is notable. But selecting officials by civil service examination by the second century BC, it may well have originated in ancient China.[28][29] Early developing a highly centralized bureaucratic state, Chinese administration cannot be traced to any one individual. But figures like 4th century BCE reformer Shen Buhai, uninfluenced by either metaphysical or religious considerations, may have had more influence than any other, and might be considered it's founder, if not valuable as a rare pre-modern example of abstract theory of administration. Sinologists Herrlee G. Creel writes that, in Shen Buhai, we "have the seeds of the civil service examination" and that "If one wishes to exaggerate, it would no doubt be possible to translate Shen Buhai's term Shu, or technique, as 'science', and argue that he was the first political scientist, though Creel does "not care to go this far".[30][31][32][33]

Far in advance of the rest of the world until almost the end of the eighteenth century, the influence of Chinese administration itself reached Europe by the twelfth century, with Creel and other scholars finding evidence of influence in Fredrick II's promulgations, characterized as the "birth certificate of modern bureaucracy".[34][35][36][37] Usually referring to Warring States period philosophers, during the Han Fa-jia would be used for others disliked by the Confucian orthodoxy, like the otherwise Confucianistic reformers Guan Zhong and Xunzi,[38] and the Huang-Lao Taoists.[39] Modernly the "Legalist School" has been considered by some the Realpolitikal thought of the ancient Chinese, and often compared with Machiavelli.[40][41][42][43][44][45][46] Angus Charles Graham called the "Legalists" the "first political philosophers in China 'to start not from how society ought to be but how it is'”. Their writings being "devoid of overarching moral considerations"[47] Creel[27] and Arthur Waley[48] used the term "Realist" to describe them.

Introduction[edit]

Historical background[edit]

Terracotta Army
Further information: Warring States period

The earliest Zhou kings kept a "firm personal hand" on the government, depending on their personal capacities, personal relations between the ruler and his ministers, and upon military might. The technique of centralized government being so little developed, they deputed authority to feudal lords.[49] "Chinese feudal society" was divided between the masses and the hereditary noblemen, the former being "objects of an enlightened benevolent political trusteeship", the latter being placed to obtain office and political power. They owed allegiance to the local prince, who owed allegiance to the Son of Heaven.[50]

With the decay of the Zhou line schismatic hostility occurred between the Chinese states. In the Spring and Autumn period aristocratic families became very important, by virtue of their ancestral prestige wielding great power and proving a divisive force.[51] A new type of ruler emerged intent on breaking the power of their power and reforming their state's bureaucracies. Those that failed were conquered of deposed.[52][53] Disenfranchised or opportunist aristocrats were increasingly attracted by the reform-oriented rulers,[54] bringing with them a philosophy concerned foremost with organizational methodology.[52] Rulers began to directly appoint incumbent state officials to provide advice and management, leading to the decline of inherited privileges and bringing fundamental structural transformations as a result of what may be termed "social engineering from above."[55][56]

Guided by the "Legalists" thought, the First Qin Emperor Qin Shi Huang conquered and unified the China's warring states into thirty-six administrative provinces with a standardized writing system, under what is commonly thought of as the first Chinese Empire, the Qin dynasty. Though the dynasty fell with the death of its emperor, the administration and political theory developed during the formative Warring States period would still influence every dynasty thereafter, as well as the Confucian philosophy that underlied Chinese political and juridical institutions.[57]

Philosophical context[edit]

Of particular concern for the Legalists, the fourth century witnessed the emergence of discussions polarizing the concepts of self and private (si), commonly used in conjunction with profit and associated with fragmentation, division, partiality, and one-sidelines, with that of the state and "public"(gong), represented by the duke and referring to what is official or royal, that is, the ruler himself, associated with unity, wholeness, objectivity, and universality. The later denotes the “universal Way". The Mohists argued against nepotism, and for universal standards as represented by the centralized state, saying "If one has ability, then he is promoted. If he has no ability, then he is demoted. Promoting public justice (gong) and casting away private resentments (si) – this is the meaning of such statements."

The "Legalist" Book of Lord Shang, drawing boundaries between private factions and the central, royal state, took up the cause of meritocratic appointment, stating “Favoring ones relatives is tantamount to using self-interest as one’s way, whereas that which is equal and just prevents selfishness from proceeding." Linking the "public" sphere with justice and objective standards, For Han Fei, the private and public had always opposed eachother. Upholding measurements and capacities, "Legalist" Shen Dao links laws to the notion of impartial objectivity associated with universal interest, reframing the language of the old ritual order to fit a universal, imperial and highly bureaucratized state. His book, the Shenzi states "balances and scales are the means by which universal measures are established; books and contracts are the means by which universal trust is established; lengths and volumes are the means by which universal criteria are established; legal policies and ritual compendia are the means by which public justice is established. Wherever the universal good (gong) is established, partial interests are abandoned...

When an enlightened ruler establishes [gong], [private] desires do not oppose the correct timing [of things], favoritism does not violate the law, nobility does not trump the rules, salary does not exceed [that which is due] one’s position, a [single] officer does not occupy multiple offices, and a [single] craftsman does not take up multiple lines of work... [Such a ruler] neither overworked his heart-mind with knowledge nor exhausted himself with self-interest (si), but, rather, depended on laws and methods for settling matters of order and disorder, rewards and punishments for deciding on matters of right and wrong, and weights and balances for resolving issues of heavy or light... the Son of Heaven is enthroned for the sake of all under Heaven; all under Heaven is not established for the sake of the Son of Heaven. The ruler of a state is enthroned for the sake of the state; the state is not established for the sake of the prince. Officials are installed for the sake of their offices; offices are not established for the sake of officials... All Under Heaven is not the sole possession of one person; it belongs to all under Heaven. The harmony of Yin and Yang does not support growth of only one kind of thing, the sweet dews and seasonable rains do not favor one thing, and so the ruler of the myriad people does not show favoritism toward a single person."[58]

Comparisons[edit]

Each of the competing "schools" of the "hundred schools of thoughts" sought to provide an answer for the attainment of "sociopolitical stability."[59] Aside from the Confucian school, which was concerned with "goodness", the "Taoists" and "Legalists" were the most prominent. But the "Taoists" had little respect for mundane authority, taking the "cultivation of inner powers" for their object.[60][61][62] "Legalist" thinkers were at the "forefront of administrative and sociopolitical innovation", and some like Shang Yang (the Prime Minister of Duke Xiao of Qin) were "leading reformers of their age."[63] Han Fei was not a philosopher per se, but a statesmen. His writings are almost purely practical, dealing in techniques of rule. The ruling noble's goal is conquest and unification of all under heaven. Han Fei is not interested in questions like legitimacy, and does not justify "Legalism", but does hold that the populace fares better under a system of law than a Confucian system.[64][65]

A more critical examination of the written codes of the Warring States period reveals that they emerged from a religious and ritual background, oaths being the origin of control of the individual and household. The early "Legalism" text Guanzi couches it's arguements in undisguised moral language. But standard treatments of the "Legalist" school oppose law with the ritual of the Confucians, representing an idealized model of the feudalistic Zhou dynasty.[66][67][68]

Objectivity was a primary goal of Shang Yang; he hated morality as a tool of government, wanting to be rid as much as possible of the subjective element in public affairs. For Shang Yang, history meant that feeling was now replaced by rational thought, and private considerations by public, accompanied by properties, prohibitions and restraints. In-order to have prohibitions, it is necessary to have executioners, hence officials, and a supreme ruler whose orders they would obey, to surpass subjective feelings. Virtuous men are replaced by qualified officials, objectively measured by law. The ruler should rely neither on his nor his officials deliberations, but on the clarification of law. Everything should be done by following the law,[69] whose transparent system of standards will prevent any opportunities for corruption or abuse.[70]

As interpreted by Han Fei, Shen Dao is remembered for his slogan, "abandon knowledge", developing the concept of the natural dao, or the actual course of events, to undermine conventional appeals to systems of guidance. There are no standards apart from the influence of social leadership. These have no special value.[71] Shen Dao said that "‘Law does not come down from Heaven, nor out of the Earth; it merely emerges in human society, and accords with people’s minds."[72] He considered a bad law better than no law at all.[73]

Han Fei was particularly vexed that Confucius made exceptions of the law out of moral considerations, rendering it ineffective. He calls the Confucian emphasis on benevolence an "aristocratic and elitist ideal" demanding that "all ordinary people of the time be like Confucius' disciples", and argues against moral considerations, which, as a product of reason, are "particular and fallible". Li, or Confucian customs, and rule by example are simply too ineffective. The prince must make use of fa (law), surround himself with an aura of wei (majesty) and shi (authority, power, influence), and make use of the art (shu) of statecraft. The ruler who follows Tao moves away from benevolence and righteousness, and discards reason and ability, subduing the people by law. Only and absolute ruler can restore the world.[74][75][76]

Another basic difference between Confucianism and "Legalism" is in the authority to make policy. Proposing a return to feudal ideals, albeit his nobleman being anyone who possessed virtue,[77] Confucians granted this to "wise and virtuous ministers", allowed to "govern as they saw fit". Shen Buhai and Shang Yang monopolized policy in the hands of the ruler,[78] Qin legal documents focus on rigorous control of local officials, and the keeping of written records.[79] The Qin document "On the Way of Being an Official" proclaims the ideal of the official as a responsive conduit, transmitting the facts of his locale to the court, and it's orders, without interposing his own will or ideas. It charges the official to obey his superiors, limit his desires, and to build roads to smooth the transmitting of directives from the center without modification. It praises loyalty, absence of bias, deference, and the appraisal of facts.[80]

Branches[edit]

Ten texts are listed in the Han imperial catalogue as belonging to the Fa Jia ("Legalists"). Fragments of the two Shenzi books of foundational philosophers Shen Buhai(400 BC–337 BCE), extant as late as the early eighteenth century, and Shen Dao(350-275 BCE) have been recovered, but only two texts have survived to modern day intact, namely the Book of Lord Shang, and the more widely read and "philosophically engaging" Han Fei Zi. Written around 240 BCE, it is commonly thought of as the greatest of all "Legalist" texts, bringing together his predecessors ideas into a coherent ideology.[81] The grouping together of thinkers that would eventually dubbed "Fa-Jia" or "Legalists" can be traced to Han Fei(280-236BCE).[82][83] Another six later books stopped being circulated more than a millennia ago.

Sinologist Creel considered the Fa school to have stemmed from from two schools of thinkers, one founded by Shang Yang, laying emphasis on penal law, the other, founded by Shen Buhai, concerned itself with "methods of administration" or "the rulers role and with control of the bureaucracy." The latter sometimes even opposed penal law. Han Fei combined the two. This latter combination is commonly known as the Fa-Jia.[84][85][86] The basic meanings of it's term, Fa, are “method” and “standard", and include “law,” but cover a much larger range in meaning, including model, method, technique, rule and regulation, often referring to two or more at the same time. In imperial China, it tended to mean something like “government program” or “institution”.

In his History of Chinese Philosophy, Fung Yu-lan divided the Legalists into three groups, one laying stress on the concept of shi (circumstantial advantage, power, or authority) as espoused by Shen Dao; the second on fa 法 (law, regulation or, standard) of Shang Yang; and the third on the shu 術 (methods or strategy) of Shen Buhai.[87][88]

  • 'Shi' (, p 'shì', lit."situational advantage"): 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.
  • 'Fa' (Chinese, p 'fǎ', lit. "method" or "standard"): 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. "technique" or "procedure"): Special tactics and 'secrets' are to be employed by the ruler to make sure others do not 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.

However, though incorporated into the Han Feizi, Shen Dao lacked a recognizable group of followers, and his theory on power may have been borrowed from the Book of Lord Shang. Xunzi never references him in this capacity, focusing on his theories on Fa.[89][90]

Fa Jia or "Legalist"[edit]

The term Fa-Jia itself would be introduced by Chinese historiographer Sima Tan[91] (c. 165 BC – 110 BCE) in his essay, "The Essential Implications of the Six Houses of Thought"[1] (The other five schools being Confucianism, Daoism, Mohism, the School of Names, and the School of Naturalists.) Sima Tan's criteria held that Fa philosophers disregarded kinship, treating everyone equally according to Fa (administrative protocol),[92] saying that they "are strict and have little kindness, but their alignment of the 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."[93] The Han Feizi credits Shang Yang with the theory of ding fa (fixing the standards) and yi min (treating the people as one),[94] and defines the Fa ("Standards") of Shang Yang in the following way: "‘Standards’ means that ordinances and commands are manifest in the administrative bureaux; laws and punishments are certain in the people’s minds; rewards are generated for those who are careful about standards; and penalties accrue to those who defy commands. These are what subjects take as their preceptor. If the lord is without technique, then he will be beclouded above; if subjects are without standards, they will be disorderly below."[95][96]

Of particular importance to understanding the "Legalist school" and it's concept, Fa, is a fourth century BCE text blending with Confucianism, the Guanzi. In “The Seven Kinds of Standard”, the Guanzi text lists seven kinds of Fa ("Standards"), these being “To be true, sincere, generous, giving, temperate, and compassionate."[97] Likening standards to the square and plumb-line,[98] The Guanzi, and more especially the Mohists explain fa as ideas, compasses, or circles, referring to an easily projectable standard of utility.[99][100][101][102] However, the concept that stands at the center of the classical discourse is that of the dao (way). It's aim is not an intellectual grasp of a definition or principle, but the practical ability to perform a task successfully. The latter constituted the Mohist conception of knowlede[103]

Mozi said, “Those in the world who perform tasks cannot do without models (fa) and standards. There is no one who can accomplish their task without models and standards. Even officers serving as generals or ministers, they all have models; even the hundred artisans performing their tasks, they too all have models. The hundred artisans make squares with the set square, circles with the compass, straight lines with the string, vertical lines with the plumb line, and flat surfaces with the level. Whether skilled artisans or unskilled artisans, all take these five as models. The skilled are able to conform to them. The unskilled, though unable to conform to them, by following them in performing their tasks still surpass what they can do by themselves. Thus the hundred artisans in performing their tasks all have models to measure by. Now, for the greatest to order (zhi, also ‘govern’) the world and those the next level down to order great states without models to measure by, this is to be less discriminating than the hundred artisans.”[104]

Shang Yang's does not change this meaning; his idea was that penal codes should be reformed to have the same kind of objectivity, clarity and accessibility as the craft-linked instruments, calculating rank mathematically.[105][106] Focusing on penal law, the Book of Lord Shang's discussion of bureaucratic control is simplistic, chiefly advocating punishment and reward, but the book addresses many administrative questions, one of the most important forcing the populace to attend solely to agriculture and recruiting labour from other states. Sima Tan's son Sima Qian accounts Shang as having divided the populace into groups of five and ten, instituting a system of mutual responsibility[107] tying status entirely to service to the state. It rewarded office and rank for martial exploits.[108][109][110][111] The recommendation that farmers be allowed to buy office with grain was apparently only implemented much later, the first clear-cut instance in 243 BCE.[112] Much of "Legalism" was "principally the development of certain ideas" that lay behind such reforms, and it was these that lead to "Qin's ultimate conquest over the other states of Eastern Zhou China in 221BCE."[113][114]

The Warring States Period Master of the Pheasant Cap uses the word fa dozens of times, in senses that include “natural model,” “organizational principle,” and “human law.”[115] Many more texts and thinkers are at times arbitrarily identified by scholars as “Legalist”.[116] Some of the recently translated Mawangdui Silk Texts are quite "Legalistic".[117]

Xing-Ming or "Administrative"[edit]

Not a few scholars have suggested names other than "Legalist", to make clear the concern of those noted thereby, not even mainly with law, but with administration.[118][119] Though the syncretic Han Feizi speaks on law, like Shen Buhai it is much more concerned with "the role of the ruler and the means by which he may control a bureaucracy."[120][121] No text identifies Shen Buhai with penal law, some just the opposite. Creel comments that Sima Tan, inventor of the term Fa-Jia, was "clearly aware that the school had two emphases" meaning both “law” and “method”, and may have used Fa for both the law of Lord Shang and the methods (bureaucratic control) of Shen Buhai.[122][123][124][125]

Suffice to say, Chinese historiographer Sima-Tan's son Sima Qian identified Han Fei, together with his predecessors Shang Yang(390-338BCE) and Shen Buhai, as "adherents of the teaching of (xing ming 刑名)",[82] which Sinologist Herlee G. Creel identified as "performance and title."[126] Liu Xiang defines Xing-Ming as "demanding actual performance with the title each official holds", writing that Shen Buhai advised the ruler of men use technique rather than punishment, relying on persuasion to supervise and hold responsible, though very strictly.[127] By comparison Han Fei, his inheritor, considered the relationship between the ruler and ministers irreconcilable.[128] A stele set up by Qin Shi Huang memorializes him as a sage that established Xing-Ming, and Emperor Wen of Sui is recorded as having withdrawn his favour from the Confucians, giving it to "the group advocating Xing-Ming and authoritarian government."[129]

For the Mohists, the process of comparing something to a fa (standard), and then judging whether the two are similar, constituted their basic conception of practical reasoning. What matches the standard is the particular object, and thus correct; what doesn’t is not. Knowledge is a matter of "being able to do something correctly in practice" — and in particular, being able to distinguish various kinds of things from one another. Evaluating correctness is thus determining whether distinctions been drawn properly.[130] Similarly, the Fa ("technique") of Shen Buhai tends to refer to "an impersonal administrative technique of determining rewards and punishments in accordance with a subject’s true merit", and is used by Han Fei to mean, besides rules, objective standards for appointment, measurement, language and reward.[131][132][133][134]

Han Fei defines the "technique" of Shen Buhai in the following way: "‘Technique’ is to bestow offices corresponding to [people’s] abilities; to hold them responsible for their real achievements in accordance with their titles; to grasp the handles of life and death; and to supervise the abilities of the thronging ministers. This is what the lord of men wields." He frequently used fa in the administrative sense, as in the following: "An enlightened ruler employs fa 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."

Shen Dao was referred to by the Confucian Xun Kuang as "beclouded by fa", more in its meaning of administrative methods than the expansive legal system of Shang Yang, though he does make use of law. The Shenzi states: "The reason why those who apportion horses use ce-lots, and those who apportion fields use gou-lots, is not that they take ce and gou-lots to be superior to human wisdom, but that one may eliminate private interest and stop resentment by these means. Thus it is said: 'When the great lord relies on fa and does not act personally, affairs are judged in accordance with fa.' The benefit of fa is that each person meets his reward or punishment according to his due, and there are no further expectations of the lord. Thus resentment does not arise and superiors and inferiors are in harmony.

If the lord of men abandons fa and governs with his own person, then penalties and rewards, seizures and grants, will all emerge from the lord’s mind. If this is the case, then those who receive rewards, even if these are commensurate, will ceaselessly expect more; those who receive punishment, even if these are commensurate, will endlessly expect more lenient treatment. If the lord of men abandons fa and decides between lenient and harsh treatment on the basis of his own mind, then people will be rewarded differently for the same merit and punished differently for the same fault. Resentment arises from this."[135]

In Chinese Thought: An Introduction S.Y. Hsieh suggests a set of assumptions underlying the concept of performance and title (xing-ming).

  • That when a large group of people are living together, it is necessary to have some form of government.
  • The government has to be responsible for a wide range of things, to allow them to live together peacefully.
  • The government does not consists of one person only, but a group.
  • One is a leader that issues orders to other members, namely officials, and assigns responsibilities to them.
  • To do this, the leader must know the exact nature of the responsibilities, as well as the capabilities of the officials.
  • Responsibilities, symbolized by a title, should correspond closely with capabilities, demonstrated by performance.
  • Correspondence measures success in solving problems, and also controls the officials. When there is a match, the leader should award the officials.
  • It is necessary to recruit from the whole population. Bureaucratic government marks the end of feudal government.[136]

Philosophical elements[edit]

Yuri Pines: Historical viewpoint[edit]

The Taoists and Confucians held a regressive view of history, the age being a decline from the era of the Zhou kings. The "Legalists" simply held this to have resulted from a scarcity of resources, prescribing statecraft.[137]

Sinologist Yuri Pines considers an evolutionary view of history and a selfish view of human nature as the pillars of "Legalist" philosophy. Pines writes that the "evolutionary view of history" and the "emphasis that economic conditions can alter moral values", distinguish the Legalists from their opponents. The "Legalists" imply that "everything is changeable", as a product of changing socioeconomic conditions.

A majority of Warring States period thinkers tried to accommodate a “changing with the times” paradigm. But the "Legalists" were much more willing to dispense with "traditional modes of rule", questioning the "very relevance of the past to the present". Shang Yang in particular considered there to be no "uniform model of orderly rule in the past". Han Fei added that such models could also not be verified. More substantially, society "evolves, making behavioral modes, institutions, and even values of the past obsolete." Shang Yang and Han Fei propose a "comprehensive readjustment of the sociopolitical system", Shang Yang's model of state formation holding that a knowledgeable people can only be coerced by a powerful state.[138]

The Legalists’ view of the people as selfish is not exceptional, but are distinct from the Confucians in dismissing the possibility of reforming the elite, that being the ruler and ministers, or driving them by moral commitment. Every member of the elite pursues his own interests, and this is the source of thinkers "great concern with regard to the ongoing and irresolvable power struggle between the ruler and the members of his entourage." It is because of this that Han Fei and other Legalists "insist on the priority of impersonal norms and regulations in dealing with the ruler-minister relations".[139]

As "Realists"[edit]

Some early modern scholars like Arthur Waley used the term "Realist", believing that said "Realists", rejecting all appeals to tradition and the supernatural, held that law should replace morality. Angus Charles Graham sketched the fundamentals of an “amoral science” largely on the basis of the Han Feizi, consisting of "adapting institutions to changing situations and overruling precedent where necessary; concentrating power in the hands of the ruler; and, above all, maintaining control of the factious bureaucracy."[140]

Waley contrasts what he terms the Realists with other the schools as largely ignoring the individual, holding that the object of any society is to dominate other societies.[141] and A.F.P. Hulsewé writes "(Shang Yang and Han Fei) were not so interested in the contents of the laws as in their use as a political tool... the predominantly penal laws and a system of rewards were the two 'handles'".[142] More recently, Liang Zhiping theorized that law emerged initially in China, namely, as an instrument by which a single clan exercised control over rival clans.[143]

In the Spring and Autumn period, a Qin king is recorded as having memorialized penalty as a ritual function benefiting the people, saying “I am the little son: respectfully, respectfully I obey and adhere to the shining virtuous power, brightly spread the clear punishments, gravely and reverentially perform my sacrifices to receive manifold blessings. I regulate and harmonize myriad people, gravely from early morning to evening, valorous, valorous, awesome, awesome – the myriad clans are truly disciplined! I completely shield the hundred nobles and the hereditary officers. Staunch, staunch in my civilizing and martial [power], I calm and silence those who do not come to the court [audience]. I mollify and order the hundred states to have them strictly serve the Qin."[144]

Han Fei[edit]

The Antiquity of Chinese Law[edit]

One 1922 article, The Antiquity of Chinese Law, attributed three legal theories to Han Fei, referred to as a "jurist".

  • The "Equitable Theory" Law must be applicable to everyone with equal force. Law should be all-inclusive and nondiscriminatory.
  • The "Objective Theory" Law is an objective, non-selfish, nondiscriminatory and unmistakable way by which rulers may govern the Empire. A ruler should govern by law, and not his subjective mind, because law is the will of many, and followed by many. Since his mind is individual, no matter how wise the ruler is, he cannot escape personal judgements. In other words, government must be of law, not men.
  • The "Theory of Enforcement" Punishments must make law enforceable. When it is not enforced it is not law. Virtue is not enforceable, and so people must only be governed by law. The unique value of law is that it is enforceable.

The "Evolutionary or Utilitarian Theory" attacks the Confucian doctrine of truth. Law must be made according to the character of the time and the place. No law can be practical in all ages, or for all peoples. Law must be practical and utilitarian. Law is not for one but for many.

The "Theory of Non-Assertion" is shared by the other schools. When a country has perfect law and machinery to enforce it, its enforcement will not be used.[145]

The Two Handles[edit]

Devoting the entirety of Chapter 14, "How to Love the Ministers", to "persuading the ruler to be ruthless to his ministers", Han Fei's enlightened ruler strikes terror into his ministers by doing nothing. The qualities of a ruler, his "mental power, moral excellence and physical prowess" are irrelevant. He discards his private reason and morality, and shows no personal feelings. What is important is his method of government. Law requires no perfection on the part of the ruler.

The Philosophy of Han Fei likens the ruler to the tiger or leopard, which "overpowers other animals by its sharp teeth and claws." Without them he is like any other man. The ruler reigns over all by his power and position, with which he "commands and flourishes", and upon which his existence depends. To "avoid any possibility of usurporation by his ministers", power and the "handles of the law" must "not be shared or divided", concentrating them in the ruler exclusively. In practice, this means that he "must be isolated from his ministers".

The elevation of ministers endangers the ruler, with which he must be kept strictly apart. Punishment confirms his sovereignty; law eliminates anyone who oversteps his boundary, regardless of intention. Law "aims at abolishing the selfish element in man and the maintenance of public order", making the people responsible for their actions.[146]

Figures[edit]

Predecessors[edit]

EN-QI260BCE.jpg
Further information: Zhou dynasty

When the Zhou kings could no longer grant new fiefs, their power began to decline and vassals began to identify with their own regions. An alliance between rebel nobles and unsinicized Rong ultimately forced the Zhou king east, resettling in Luoyang.[147] In the Spring and Autumn period officials began reforms in order to support the authority, states, and militaries of the kings.[148]

The Qi city of Linzi was one of the largest and richest of the Spring and Autumn Period, and home to the Jixia Academy.

"Huang-Lao thought", centering around the Jixia Academy is considered to have early emerged as part of an effort to develop solutions for the restoration of the feudal order. The Taoistic side of this later included texts like the Huainanzi, emerging as the ideological backdrop to the early Han Dynasty feudal court.

One early "Huang-Lao" text coming out of the Jixia academy, the Guanzi, whose traditional author was said to be Guan Zhong, was actually a compilation mostly of Jixia scholars. A number of its chapters chapters express what has been termed a blend of Legalist, Confucianistic, and Daoistc philosophy that may be considered "Huang-Lao".[149] Taoism was thought by earlier scholars to have a considerable influence on Legalism. Creel later considered this view mistaken; there is no evidence that Taoism existed so early, for instance, as Shen Buhai, who makes considerable use of the term Tao, but not in the Taoist manner.[150][151] Confucians also make use of the term Tao.

Guan Zhong (720-645 BCE)[edit]

If land is not distributed in an orderly fashion, government offices will not be well managed. If offices are not well managed, production will be poorly organized. If production is poorly organized, goods will not be plentiful. There is a proper way.

Guanzi "Military Taxes"

R. Eno of Indiana University writes that "If one were to trace the origins of Legalism as far back as possible, it might be appropriate to date its beginnings to the prime ministership of Guan Zhong, chief aide to the first of the hegemonic lords of the Spring Autumn period, Duke Huan of Qi (r. 685 - 643)."[152] The reforms of Guan Zhong (720-645 BCE) applied levies and economic specializations at the village level instead of the aristocracy, and shifted administrative responsibility to professional bureaucrats. Allyn Rickett, translator of the Guanzi text bearing his name considers him to have been one of the "chief models for a new type of professional bureaucrat and political adviser who came to the fore as the old hereditary officials proved inadequate for the task...[153]

On the other hand, Rickett judges him to have been "at least in most respects" an "ideal Confucan minister"[154] and that, regarding the text, 'Realist' or "realistic Confucian" might make a description, presenting a "point of view much closer to that of the realistic Confucian, Xunzi" than the "Draconian Legalism advocated by Shang Yang and his followers and supposedly implemented in the state of Qin, especially under the First Emperor."[155] While, like the Book of Lord Shang, chapter one (Mu Min) emphasizes the clearing of wasteland for agriculture, the basis for its state lay in the "four virtues" (proprity, righteousness, integrity, sense of shame).[156]

One 1995 Chinese study characterized the political philosophy of the Guanzi as “Qi legalism” (Qi fajia), distinguished from the “Qin legalism” (Qin fajia) of Shang Yang and Han Fei by concern for morality.[157]

(470-391 BCE) Mozi[edit]

Main article: Mohism
Between Mozi's background as an engineer and his pacifist leanings, the Mohists became experts at building fortifications

Feng Youlan considered Mozi to be "one of the most important figures of Chinese history."[158] Most scholars date Mozi at around 470-391 BCE, being born around the time of the death of Confucius. Later perniciously criticized by Mencius,[159] the Mohist school otherwise "died out during the decades following the Qin conquest of 221", but was very influential in the Warring States period. Mozi might be considered the first to have "offered a strong intellectual challenge to Confucianism,"[160] and is generally considered to have been its main contender "during the two centuries prior the Qin hegemony."[161] Like Confucians, the Mohists supported a "centralized, authoritarian state led by a virtuous, benevolent sovereign and managed by a hierarchical, merit-based bureaucracy." They advocated a unified, utilitarian ethical and political order, positing some of its first theories and initiating philosophical debate in China. Compared with Plato, in their hermeneutics they contained the philosophical germs of what Sima-Tan would term the "Fa-School" ("Legalists"), contributing to the political thought of contemporary reformers.[162]

Notable "Legalists"[edit]

Modern day Henan province

Zichan(d. 496 BCE) was a high minister of the central Zhou state Zheng during the late Spring and Autumn period. Zichan reformed the state on a legal basis, enacting a harsh criminal code. He cast the state's code of law in bronze vessel to be displayed in public as a demonstration of permanence and incorruptibility, a first among the Zhou states. Shang Yang would make similar such gestures two hundred years later, and like him Zhichan reformed agricultural and commercial laws and changed social norms, and discouraged superstition.[163][164] Confucius(551 – 479 BCE) admired him; when a fire blaze had destroyed a part of the land, the duke wanted to undergo expensive sacrificial offerings, but Zichan admonished him to exert a more virtuous government.[165]

EN-WEI260BCE.jpg

Li Kui wrote the Book of Law (Fajing, 法经) in the state of Wei, which was the basis for the codified laws of the Qin and Han dynasties, in 407 BC. His political agendas, as well as the Book of Law, had a deep influence on later thinkers such as Han Fei and Shang Yang, including the institution of meritocracy, and giving the state an active role in encouraging agriculture, purchasing grain to fill its granaries in years of good harvest to ease price fluctuations. The direct result of these pioneering reform measures was the dominance of Wei in the early decades of the Warring States era. He recommended Ximen Bao, credited as China's first hydraulic engineer, and Wu Qi as a military commander when Wu Qi sought asylum in Wei.[166][167]

Passages from the Huainanzi suggest that Wu Qi "tried to implement typically Legalist reforms" in Wei.[168] Widely regarded as China's first great general, his "impressive administrative contributions" are often ranked with Lord Shang, who "served as a household tutor" four decades after Wu left. Seriously considering "all aspects of war and battle preparation", the Wu-tzu text attributed to him has "long been valued as one of the basic foundations of Chinese Military thought."[169] Mark Edward Lewis once identified Shang Yang's reorganization of the military as responsible the orderly plan of roads and fields throughout north China. This might be far fetched, but Shang Yang was as much a military reformer as a legal one.[170]

Finally, as Prime Minister, Shang Yang reformed the State of Qin from 360-338 in a "comprehensive plan to eliminate the hereditary aristocracy", abolishing the old fixed landholding system (the well field system) and direct primogeniture, making it possible for the people "to sell and buy" farmland, encouraging the peasants of other states to come to Qin. Shang Yang emphasized law (fa) as the most important device for upholding the power of the state. He insisted that it be made known and applied equally to all, posting it on pillars erected in the new capital. In 350, along with the creation of the new capital, a portion of Qin was divided into thirty-one counties, each "administered by a (presumably centrally appointed) magistrate". This was a "significant move toward centralizing Ch'in administrative power" and correspondingly reduced the power of hereditary landholders.[171][172][173]

Notable "Administrators"[edit]

Born around 400BCE, Shen Buhai was Chancellor of Han from 351BCE to 337BCE.[174] To aid his patron in preventing misgovernance, formalized the concept of shu, the bureaucratic model of administration. Shen Buhai argued that the ruler's most important asset was an intelligent minister. He advised that rulers should keep a low profile, hide their true intentions and feign nonchalance, limiting themselves to judging ministers’ performances. It was the minister's duty to understand specific affairs, which the ruler did not involve himself in. Theoretically, by cloaking both his desires and his will, the Emperors checked sycophancy and forced his subject to heed his dictates. 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 philosopher's advice on the role of the ruler.

Han Fei blamed him for concentrating all his attention on administrative technique, neglecting law. What he appears to have realized is that the "methods for the control of a bureaucracy" could not be mixed with the survivals of feudal government, and that government "cannot be staffed merely by getting together a group of 'good men'", but rather must be men qualified in their jobs. His technique, Xing-Ming, compared Xing, the qualities and performance of the individual, with Ming, the qualities and duties required for the post. He never mentions virtue.[175] He used the term wu-wei to mean that the ruler, though vigilant, should not interfere with the duties of his ministers. The only other book to use the term in this manner is the Tao Te Ching, and since it was composed later it may therefore be assumed that Shen influenced the Tao Te Ching.[176]

As protégé of a Han Dynasty Commandant of Justice that had studied under Li Si, Jia Yi was also student of Shen Pu-hai.[177] The Emperor Xuan of Han was said by Liu Xiang to have been fond of reading Shen Buhai, using Xing-Ming ("Performance and title") to control his subordinates and devoting much time to legal cases.[178][179]

Jixia Academy's Shen Dao (350 – c. 275 BC) emphasized that the head of state was endowed with shi, the "mystery of authority", commanding the respect and obedience of the people. The emperor's very figure brought legitimacy. In the philosophy of Shen Dao and other such philosophers, the establishment of order and the sovereign's restraining hold on the state generates the stability necessary for any rule at all. Shen Dao advised the ruler to monopolize authority in-order to prevent its abuse by feudal magnates and ministers.[180] Shen Dao enjoined the ruler to make no judgements,[181] instead relying on protocol to reward or penalize ministers according to their performance.[182] Wang Fuzhi speculated that the chapter "Essay on Seeing Things as Equal" was actually written by Shen Dao.[183]

Han Fei depicted Shen Dao, Shen Buhai, and Shang Yang as the authors of single political concepts, which he combined into a coherent philosophy.[184] By Han Fei's standards a good leader must not only accept the advice of loyal ministers when shown to be in error, but also extend courtesy to those beneath him or her and not be too avaricious. Stressing that ministers and other officials too often sought favours from foreign powers by abusing their positions, he urged rulers to control these individuals using the two handles of punishment and favour through Fa (methods, standards), preventing ministers and other officials from performing some other official's duties and punishing them if they attempted to blind the ruler with words or failed to warn them.(citation needed)

Concerning administrative methods, Li Si "indicated that he admired and utilized the ideas of Shen Pu-hai", repeatedly referring to the technique Shen and Han Fei, but regarding law followed Shang Yang.[185] Li Si unified the laws, governmental ordinances, and weights and measures, and standardized chariots, carts, and the characters used in writing. He created a government based solely on merit. He relaxed the draconian punishments inherited from Shang Yang and reduced the taxes.[186]

When Li Si gained audience with the young king he told him that "The small man is one who throws away his opportunities, whereas great deeds are accomplished through utilizing the mistakes [of others], and inflexibly following them up."[187]

Accepting Shang Yang's earlier emphasis on the standardization of weights and measures, 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 philosopher's thought in Qin law. Reflecting the philosopher's 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.

The Records of the Three Kingdoms describes Cao Cao as a hero who "devised and implemented strategies, lorded the world over, wielded skillfully the law and political technique of Shen Buhai and Shang Yang, and unified the ingenious strategies of Han Fei."[188]

Later influence[edit]

A modern marble statue of the first Emperor of China, Qin Shi Huang

This intrastate realpolitik would end up devouring the philosophers themselves. Holding that if punishments were heavy and the law equally applied, neither the powerful nor the weak would be able to escape consequences, Shang Yang advocated the state's right to punish even the parent's tutor, and ran afoul of the future King Huiwen of Qin (c. 338–311 BC). Whereas at one point, Shang Yang 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.

With the coming of the Han dynasty, the reputation of Legalism suffered from its association with the former Qin dynasty. Sima Tan, though the hailing the Fa "school" 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."[189]

The syncretic early Han Dynasty text, the Huainanzi writes that "On behalf of the Ch'in, Lord Shang instituted the mutual guarantee laws, and the hundred surnames were resentful. On behalf of Ch'u, Wu Ch'i issued order to reduce the nobility and their emoluments, and the meritorious ministers revolted. Lord Shang, in establishing laws, and Wu Ch'i, in employing the army, were the best in the world. But Lord Shang's laws [eventually] caused the loss of Ch'in for he was perspicacious about the traces of the brush and knife, but did not know the foundation of order and disorder. Wu Ch'i, on account of the military, weakened Ch'u. He was well practiced in such military affairs as deploying formations, but did not know the balance of authority involved in court warfare."[168]

But although Confucianism was promoted by the new emperors, the government continued to be run by Legalists. Emperor Wu of Han (140–87 BC) barred Legalist scholars from official positions and established a university for the study of the Confucian classics.[190] Although the emperor acted as a patron of Confucianism, his policies and his most trusted advisers were Legalist.[191] An official ideology cloaking Legalist practice with Confucian rhetoric would endure throughout the imperial period, a tradition commonly described as wàirú nèifǎ (Chinese: 外儒内法; literally: "outside Confucian, inside Legalist").[192] During the Sui and Tang dynasty, Buddhist ideas were also part of the external face of the imperial system.

The Confucian thinker Xun Zi is sometimes considered as being influenced by or having nourished Legalist ideas, mostly because of two of his disciples (Li Si and Han Fei). During the decay of the Han Dynasty, many scholars again took up an interest in "Legalism", Taoism and even Mohism.[193]

References[edit]

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Sources[edit]

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External links[edit]