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 Legalism is one of the six classical schools of thought in Chinese philosophy that developed during the Warring States period. Grouping thinkers with an overriding concern for political reform, the Fa-Jia were crucial in laying the "intellectual and ideological foundations of the traditional Chinese bureaucratic empire",[4] and remain highly influential in administration, policy and legal practice in China today.[5] Largely ignoring morality or questions on how a society ideally should function, they examined contemporary government, emphasizing transparent administration[6] and a realistic consolidation of the wealth and power of autocrat and state, with the goal of achieving increased order, security and stability.[7]

That there is any evidence at all in the ancient world for a field of management is notable, and may well be said to have originated in ancient China,[8] including possibly the first, if not highly centralized bureaucratic state, and earliest (by the second century BC) example of an administration based on merit through testing.[9] Far in advance of the rest of the world until almost the end of the eighteenth century, Sinologist Herrlee G. Creel and other scholars find the influence of Chinese administration in Europe by the twelfth century, for example, in Fredrick II's promulgations, characterized as the "birth certificate of modern bureaucracy".[10]

Though Chinese administration cannot be traced to any one individual, emphasizing a merit system figures like 4th century BC reformer Shen Buhai (400–337 BC) may have had more influence than any other, and might be considered its founder, if not valuable as a rare pre-modern example of abstract theory of administration. Creel writes that, in Shen Buhai, there are 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".[11]

Shang Yang's numerous reforms transformed the peripheral Qin state into a militarily powerful and strongly centralized kingdom. Much of "Legalism" was "principally the development of certain ideas" that lay behind his reforms, and it was these that lead to Qin's ultimate conquest over the other states China in 221 BCE.[12][13]

The grouping together of thinkers that would eventually dubbed "Fa-Jia" or "Legalists" can be traced to Han Fei (280–236 BC).[8][14] Written around 240 BC, the Han Feizi is commonly thought of as the greatest of all "Legalist" texts, bringing together his predecessors' ideas into a coherent ideology.[12][15] They attracted the attention of the First Emperor.[16] and are believed to contain the first commentaries on the Tao te Ching in history.[17]

Calling them the "theorists of the state", sinologist Jacques Gernet considered the Fa-Jia to be the most important tradition of the fourth and third centuries BC,[18] the entire period from the Qin dynasty to Tang being characterized by its centralizing tendencies and economic organization of the population by the state.[19] The Han dynasty took over the governmental institutions of the Qin dynasty almost unchanged.[20] Endorsement for this school of thought peaked under Mao Zedong, hailed as a "progressive" intellectual current.[21] In the west, the Legalist School has been considered by some as akin to Realpolitikal thought of ancient China,[22] and often compared with Machiavelli[23] for its (sometimes blunt) realism, though the Shen Buhai branch is more conciliatory.

Historical background[edit]

Terracotta Army
Further information: Warring States period

"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.[24]

The earliest Zhou kings kept a "firm personal hand" on the government, depending on their personal capacities, personal relations between ruler and minister, and upon military might. The technique of centralized government being so little developed, they deputed authority to feudal lords.[25] When the Zhou kings could no longer grant new fiefs, their power began to decline, vassals began to identify with their own regions,[26] and schismatic hostility occurred between the Chinese states. Aristocratic families became very important, by virtue of their ancestral prestige wielding great power and proving a divisive force.[25]

In the Spring and Autumn (771-476BC~) period, rulers began to directly appoint 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."[3][27] Most Warring States period thinkers tried to accommodate a "changing with the times" paradigm, and each of the schools of thought sought to provide an answer for the attainment of "sociopolitical stability".[28]

The Confucians were the most prominent, concerned with "goodness". Aside from them the (proto)Taoists and Fa-Jia ("method" or "standards" "specialists/school") were the most prominent. But the Taoists focused on the development of inner powers,[29] and both the Taoists and Confucians held a regressive view of history, the age being a decline from the era of the Zhou kings.[30] For the Confucians, the Classics provided the preconditions for knowledge. For Xun Kuang they contained the logical categories on which knowledge of things was based.[31] Orthodox Confucians tended to consider organizational details beneath both minister and ruler, leaving such matters to underlings.[32]

A new type of ruler emerged intent on breaking the power of the aristocrats and reforming their state's bureaucracies. Those that failed were conquered or deposed.[33][34] As disenfranchised or opportunist aristocrats were increasingly attracted by the reform-oriented rulers,[35] they brought with them philosophy concerned foremost with organizational methodology.[33] Shang Yang (390–338 BC) was a leading reformer of his time, concerned largely with administrative and sociopolitical innovation.[28]

The "Fa-Jia" or "Fa specialists" were not philosophers per se, but statesmen, becoming known as 'men of methods' (fashu zishi),[36] and refers not to an actual school or movement at all, but a category or grouping of "realistic" statesmen emphasizing the importance of Fa,[37] which the appendix to the Book of Changes defines as "to institute something so that we can use it." Part of any institutional structure or process,[38] Fa's basic meanings are "method" and "standard",[39] and are much broader than "law",[14] including rules, measures, codified books,[40] models, technique, or regulation, often implying two or more at the same time.[41]

Successful reforms made the "Fa-Jia" significant, promoting the rapid growth[42] of the Qin state that applied reforms most consistently.[43] Rather than aristocratic fiefs, Qin territory came under the direct control of the Qin rulers, directly appointing officials on the basis of their qualifications.[44] The philosophies of the reformers fell with the Qin, but tendencies remained in the supposedly Confucian imperial government, and the Han Feizi would be studied by rulers in every dynasty.[45]

Realpolitik[edit]

"To subvert the ordinances in order to protect one's own family is called having principles. To pass out favors and gain a mass following is called winning the people."[46] Han Fei

The goal of the Fa-Jia for the ruler was conquest and unification of all under heaven (or in the case of Shen Buhai, at least defense),[47] teaching the ruler techniques to survive in a competitive world[47][48] through administrative reform - strengthening the central government, increasing food production, enforcing military training, or replacing the aristocracy with a bureaucracy.[48]

On rare occasion Han Fei lauds such qualities as benevolence and proper social norms.[49] One recent Chinese scholar argued that "Han's legal vision is informed by an expansive view of not only ethics but also justice... defined as a moral choice between personal interests and public obligations..."[50] But more generally Han Fei's writings are almost purely practical, eschewing ethics in favour of strategy and the techniques (shu) of rule.[51][52][47]

Han Fei's prince must make use of Fa, surround himself with an aura of wei (majesty) and shi (authority, power, influence),[30][49] 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 through Fa. Only an absolute ruler can restore the world.[49] Han Fei is not interested in questions like legitimacy, and does not justify his philosophy apart from references to the Dao (or "way" of government), but does hold that the populace fares better under a system of Fa than a Confucian system.[53]

Public interest[edit]

The belief in the necessity of an absolute monarch for the attainment of stability and order is common to most political theorists of the Warring States period.[54] Of particular concern for the Fa-Jia and their forebearers, the Mohists, 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".[55]

Though not exceptional, Sinologist Yuri Pines considers a selfish view of human nature to be a pillar of Fa-Jia philosophy, and 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. Considering the power struggle between ruler and minister irreconcialiable, the Fa-Jia insist on impersonal norms and regulations in their relations.[56]

Preserving and strengthening the ruler's authority may therefore be considered the reformer's "singularly pronounced political commitment". Han Fei requires that the ruler punish disobedient ministers even if the results of their actions were successful. Allowing him to prevent collapse by combating or resolving ministerial disagreements and ambitions, the rule's exclusive authority outweighs all over considerations,[57] and goods may not be considered meaningful outside of his control.[58]

With due consideration for the times they were living in, the Fa-Jia did not believe that the moral influence or virtue of the ruler was powerful enough to create order, focusing on the prevention of evil rather than the promotion of good. A number of chapters considering men naturally evil, the Book of Lord Shang's model of history holds that a knowledgeable people can only be coerced by a powerful state.[59] Shen Buhai simply ignores virtue. In contrast with Confucianism, the approach of the Fa-Jia was therefore primarily at the institutional level, aiming for a clear power structure, consistently enforced rules and regulations, and in the Han Feizi, engaging in sophisticated manipulation tactics to enhance power bases.[60]

Largely rejecting the utility of both virtue and the Confucian rule of man,[61] Historiographer Sima Tan's commonly cited criteria held that the Fa-Jia ignored differences and disregarded kinship, evaluating everyone equally according to Fa, 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 does not distinguish between kin and stranger or differentiate between noble and base; all are judged as one."[62] This equal treatment may be considered a "Fa-Jia" value, akin to Aristotle's value of freedom,[63] but was intended to support the position, prerogatives and policies of the prince,[64] though by definition Fa is never merely his will.[65]

Administrative focus[edit]

The key figure in the bureaucracy that ran China was the district magistrate. A combination of mayor, chief of police, and judge, he obtained the position by first doing well in the examination for the civil service and then performing well in administrative positions at a lower level. He was assisted in his duties by a staff of lower level officials, some his own employees who moved with him from place to place, some permanently located in the district.
Any penalty a magistrate imposed more serious than bambooing had to be approved at the provincial level, any decision not based on statute, including a decision by analogy, required approval from Peking.[66]
Drawing by William Alexander, draughtsman of the Macartney Embassy to China in 1793.

It is generally agreed that the achievements of the Fa-Jia lie in jurisprudence and the organization and conduct of the government, providing the underpinnings for Chinese law together with Confucianism.[67] In Imperial China, almost all activities considered by law were linked with a punishment, reinforcing the view of its concerns as being largely criminal.[68] This, however, is incorrect.[69] An earlier interpretation of Shang Yang, the "Fa-Jia" were concerned not even mainly with law, but with administration.[14][70]

Lacking modern resources, the Chinese did not distinguish law from administration even under the Maoists.[71] Administrative justice was always an aspect of "executive", general administration.[72] Viewed as within the domain of the Emperor and his officials, who were responsible for all alterations, the development of a legal profession would be prohibited or otherwise unknown. Lawyers were described as litigation tricksters, pettifoggers, tigers, wolves or demons, while the Confucians left civil matters to custom, emphasizing "spiritual cultivation."[73] This dualism may be compared to Roman continental law, which the late Qing dynasty and the Kuomintang used in their reforms, and which sought the security of the position of the Emperor and territorial integrity and was based on the two authorities of state over citizen and family over dependent.[74]

Moreover, even at the local level, and even if the cultural framework for much in the way of individual rights existed (it emphasized family), Fa, or its minimalist government, could not expected to administer much in the way of individual rights or social regulation, let alone from an imperial level.[75] Though seeking social order, as a political tool concerned with state interests and administration, the Fa of the ruler could only focus on officials (who were then held against their own code).[76]

The authority to make policy is a basic difference between Confucianism and the Fa-Jia. Proposing a return to feudal ideals, albeit his nobleman being anyone who possessed virtue,[24] Confucians granted authority to "wise and virtuous ministers", allowed to "govern as they saw fit".[77] Shen Buhai and Shang Yang monopolized policy in the hands of the ruler,[78] and Qin administrative documents focus on rigorous control of local officials, and the keeping of written records.[79]

Distinguished by their anti-ministerial stance,[80] the Fa-JIa rejected their Confucian contemporaries espousal of a regime based solely on the charisma of the aristocrats,[81] seeking mechanically reliable, if not foolproof means to control officials administering the state,[3] or otherwise dispense with them.

Branches[edit]

Less well defined compared to Confucianism and Mohism, it is unclear when the Fa-Jia came to be regarded as an intellectual faction, only forming a complex of ideas around the time of Li Si, elder advisor to the First Emperor.[82] Sinologists Herrlee G. Creel considered the Fa-jia to have stemmed from two disparate contemporary thinkers.[83]

Shang Yang (390–338 BC) instituted severe punishment for the Qin (later reduced), and is distinguished by his heavy emphasis on penalty and mutual responsibility,[84] though it must be noted that his focus is administrative and that he and the Book of Lord Shang address many other administrative questions.[85] However, he ultimately did not believe that the method of rule really mattered as long as the state was rich,[86] distributing administrative models to the population aimed at increased production, to try to decrease reliance on officials and therefore the choice of men.[87]

Shen Buhai (400 BC – c. 337 BC), prime minister of the Han state, pursued detailed regulation, concerning himself with methods (Fa) of (impersonal bureaucratic) administration (namely methods of appointment and performance measurement) or the ruler's role in the control thereof. Though incorporated into the Han Feizi and the The Art of War, the scholar Shen Dao(350 – c. 275 BC) lacked a recognizable group of followers.[88] Han Fei describes the "two schools":[89]

Now Shen Buhai spoke about the need of Shu ("Technique") and Shang Yang practices the use of Fa ("Standards"). What is called Shu is to create posts according to responsibilities, hold actual services accountable according to official titles, exercise the power over life and death, and examine into the abilities of all his ministers; these are the things that the ruler keeps in his own hand. Fa includes mandates and ordinances promulgated to the government offices, penalties that are definite in the mind of the people, rewards that are due to the careful observers of standards, and punishments that are inflicted upon those who violate orders. It is what the subjects and ministers take as a model. If the ruler is without Shu he will be overshadowed; if the subjects and ministers lack Fa they will be insubordinate. Thus, neither can be dispensed with: both are implements of emperors and kings.[90]

However, the Shen Buhai branch sometimes even opposed punishments. Han Fei (280 – 233 BC) combined the branches. This combination is commonly known as the Fa-Jia.[91][92] Because, historically, the branches did not endorse each other's views, Creel often called the Shen Buhai group "administrators", "methodists" or "technocrats."[41] The Cambridge History of China nominally accepts this division, but Shen Buhai is still not widely precluded from the use of the term Legalist,[93] Han Fei calling both the "instruments of Kings and Emperors" and Li Si praising them equally, finding no contradiction between them.[93]

Mohists[edit]

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

The Mohists advocated a unified, utilitarian ethical and political order, posting some of its first theories and initiating philosophical debate in China. To unify moral standards, they supported a "centralized, authoritarian state led by a virtuous, benevolent sovereign managed by a hierarchical, merit-based bureaucracy".[94] That social order is paramount seems to be implicit, recognized by all.[95] They 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 and casting away private resentments – this is the meaning of such statements."[96]

Often compared with Plato, the Mohist's hermeneutics contained the philosophical germs of what Sima-Tan would term the "Fa-School" ("Legalists"), contributing to the political thought of contemporary reformers.[94] The Mohists and the Guanzi text attributed to Guan Zhong are of particular importance to understanding Fa,[97] meaning "to model on" or "to emulate".[98] Dan Robins of the University of Hong Kong writes that Fa "became important in early Chinese philosophy largely because of the Mohists".[99]

Legalism and Mohism are distinguished by their effort to obtain objectivity,[100] but their thought is not based on entities, transcendentals or universals, but parts - such as roles("names").[101] Rejecting the Confucian idea of parents as a moral model as particular and unreliable, the driving idea of the Mohists was to find objective models (Fa) for ethics and politics, as was done in any practical field, to order or govern society. These were primarily practical rather than principles or rules,[102] as in the square and plumb-line.[13] Referring to an easily projectable standard of utility, the Guanzi and more especially the Mohists explain "Fa" as compasses or circles,[103] and may be prototypes, exemplars, or (specific) analogies.[104] In principle, if their roots in Mozi and Guan Zhong are considered, the "Legalists" might all be said to use Fa in the same (administrative) fashion.[105]

Fa ("Standards")[edit]

Small seal scripts were standardized by the First Emperor of China after he gained control of the country, and evolved from the larger seal scripts of previous dynasties.

The 12 characters on this slab of floor brick affirm that it is an auspicious moment for the First Emperor to ascend the throne, as the country is united and no men will be dying along the road.

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."[94]

Advocating language standards (Fa) appropriate for use by ordinary people,[106] Guan Zhong and Mozi recommended they be objective, reliable, easily used,[107] publicly accessible, opposing what Sinologist Chad Hansen terms the "cultivated intuition of self-admiration societies", expert at chanting old texts. However, it could complement any traditional scheme, and Guan Zhong uses Fa alongside the Confucian Li. What Fa made possible was the accurate following of instructions.[108] With minimal training, anyone can use Fa to perform a task or check results.[109] For the most part, Confucianism does not elaborate on it, though the idea of norms themselves are older and Han Confucians embraced Fa as an essential element in administration.[38][108]

Fa is never merely arbitrary or the ruler's will, but implies measurement. Its aim is not an intellectual grasp of a definition or principle, but the practical ability to perform a task (dao) successfully, or to "do something correctly in practice" — and in particular, to be able distinguish various kinds of things from one another. Measuring to determine whether distinctions have been drawn properly, Fa then compares something against itself, and judges whether the two are similar, just as with the use of the compass or the L-square. What matches the standard is then the particular object, and thus correct. This constituted the basic conception of Mohist's practical reasoning and knowledge.[109][94][109] Mohists and "Legalists" proposed its use for reward and punishment, promotion and censure, drawing from the general population.[95]

This process is relatable to the Confucian rectification of names, which arguably originates in Mozi as Fa.[106][108] Administration standards in "Legalism" are based on such "matching language to reality." Declarations, such as those of a judge, produce social reality. Language, such as that of a legal code, is linked to social control. If words are not correct, they do not correspond to reality, and regulation fails. Law is "purified", rectified, or technically regulated language.[106][110] For Mozi, if language is made objective, then language itself could serve as a source of information and argued that in any dispute of distinctions, one party must be right and one wrong.[106] For Shen Buhai, correct or perverse words will order or ruin the state.[111] Fa is "objective, particularly operational or measurement-like standards for fixing the referents of names."[112]

Despite the framing of Han historians, the Fa-Jia do not seem to think they are using Fa differently than anyone else,[113] and the influence of the Mohists is likely strong.[114] Shang Yang's systematic application of penalties increase the tendency to see it as penal, but arguably does not change meaning from that of the Mohists. Shang Yang's innovation was not penal law, which was common enough, if unsystematically applied. Rather, Shang Yang's idea was that penal codes should be reformed to have the same kind of objectivity, clarity and accessibility as the craft-linked instruments. Applied to economy and institution, Shang Yang's Fa is total and anti-bureaucratic, calculating rank mathematically from the adherence to standards (Fa) in the performance of roles (models), namely that of farmers and soldiers.

Theoretically, Han Fei's Fa exactly follows Mozi. Crediting Shang Yang with the practice of Fa in statecraft,[115][13] Han Fei shows no revolutionary insight into rules. Objectively-determined "models" (Fa) or "names" (titles/roles), being measured against, replace intuitive guidance, especially that of the ruler. It is these that enable control of a bureaucracy. Han Fei rejects Confucian Li, scholarly interpretation and opinion, worldly knowledge, and reputation: models must be measured, dissolving behaviour and disputes of distinction and into practical application.[116]

Taking up Shen Buhai's method (Fa), besides universal rules, Han Fei used Fa for appointment, measurement, language and reward. Because Fa (standards) are necessary for articulating terms, Fa is presupposed in any application of punishment. Han Fei stressed measurement-like links between rewards and punishments and performance. Applied through incentives and disincentives, Fa provided guidance for behaviour and performance, and governed advancement, addressing crimes like thievery under the same sort of administrative protocol as that for the performance of civil and military roles,[108][3] considered together with postal and salt administration, "public works, granaries, social welfare, education, and religious and ceremonial functions."[117] An example of excavated Qin texts consists of twenty-five abstract model patterns guiding procedure, based on actual situations.[118]

Shang Yang[edit]

Small bronze plaque containing an edict from the second emperor of the Qin dynasty. 209 BC.

Considering there to be no single model of rule in the past, and everything changeable as a product of changing conditions,[119] Shang Yang(390–338 BCE) held decline to have resulted from a scarcity of resources, prescribing statecraft.[30] Questioning traditional rule and the relevance of the past to the present,[28] the first chapter of the Book of Lord Shang cites Shang Yang as saying: "Orderly generations did not [follow] a single way; to benefit the state, one need not imitate antiquity".[120]

Hailing from Wei, as Prime Minister of the State of Qin from 360-338 Shang Yang engaged in a "comprehensive plan to eliminate the hereditary aristocracy", abolishing the old fixed landholding system (Fengjian) and direct primogeniture, making it possible for the people to buy and sell (usufruct) farmland, encouraging the peasants of other states to come to Qin.[121][122][123]

Shang Yang believed the sovereign to be a culmination in historical evolution, representing the interests of state, subject and stability.[124] Drawing boundaries between private factions and the central, royal state, Shang Yang 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."[55]

The Han Feizi credits Shang Yang with the theory of ding fa (fixing the standards) and yi min (treating the people as one),[125] and defines the Fa ("Standards") of Shang Yang in the following way: "'Fa' means that ordinances and commands are manifest in the administrative bureaux; standards 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 subjects are without Fa, they will be disorderly."[126] Shang Yang also corrected measures and weights.[127]

Objectivity was a primary goal of Shang Yang, wanting to be rid as much as possible of the subjective element in public affairs. The greatest good was order. 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 Fa. The ruler should rely neither on his nor his officials deliberations, but on the clarification of Fa. Everything should be done by Fa,[128][129] whose transparent system of standards will prevent any opportunities for corruption or abuse.[130]

Shang Yang emphasized 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.[131][132][133]

The government will call on society as a whole to be more proactive in implementing the rule of law... (and) encourage all members of society to voluntarily abide by the rule of law and to become its most faithful advocates and staunchest defenders.
Fourth Plenary Session of the 18th Central Committee of the Communist Party of China excerpt, University of Sydney[134]

As the first of his accomplishments, historiographer Sima Qian accounts Shang as having divided the populace into groups of five and ten, instituting a system of mutual responsibility[135] tying status entirely to service to the state. It rewarded office and rank for martial exploits.[136] The second is forcing the populace to attend solely to agriculture and recruiting labour from other states.[135] The recommendation that farmers be allowed to buy office with grain was apparently only implemented much later, the first clear-cut instance in 243 BC.[125]

Shang Yang deliberately produced equality of conditions amongst the ruled, a tight control of the economy, and encouraged total loyalty to the state, including censorship and reward for denunciation. From a western viewpoint it might be said that he sought to establish the supremacy of what some have termed positive law at the expense of customary or "natural" law. Law was what the sovereign commanded, and this meant absolutism, but it was an absolutism of law as impartial and impersonal. Shang Yang discouraged arbitrary tyranny or terror as destroying law.[137] Neither did he rely on any external apparatus of coercion, but upon the citizenry as manifesting the aims of the ruler. Publicly declared rules and regulations were to ensure order without effort on the part of the ruler - the ideal of wu-wei.[137]

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.[138]

Following the execution of Shang Yang by aristocratic interests, including the king himself, King Huiwen turned away from the central valley south to conquer Sichuan (Shu and Ba) in what Steven Sage calls a "visionary reorientation of thinking" toward material interests in Qin's bid for universal rule.[139]

The Shang Yang school was favored by Emperor Wu of Han.[140]

Ruler's predicament[edit]

Han state bronze candle holder

Though persisting, pre-modern mainstream Chinese thinking never really accepted the role of law and jurisprudence, or the Shang Yang wing of the Fa-Jia. The Fa-Jia's most important contribution lies in the organization and regulation of centralized, bureaucratic government,[141] for its students are largely responsible.[142] But it's basic structure and operation of the traditional Chinese state is not Legalist as the term is commonly understood. Sinologist Creel called its philosophy administrative for lack of a better term, and considered it to have been founded by Shen Buhai (400 BC-337 BC), who likely played an "outstanding role in the creation of the traditional Chinese system of government". No text identifies Shen Buhai with penal law, and he never discusses rewards or punishments.[143] Despite this, Shen Buhai was well aware of the possibility of the loss of the ruler's position, and thus state or life, from said officials,[144] saying:

One who murders the ruler and takes his state," Shen says, "does not necessarily climb over difficult walls or batter in barred doors or gates. He may be one of the ruler's own ministers, gradually limiting what the ruler sees, restricting what he hears, getting control of his government and taking over his power to command, possessing the people and seizing the state."[145]

Apart from Shang Yang's doctrine of penalties and mutual spying and denouncement among ministers, Han Fei recommends the ruler should protect himself through careful employment of techniques, or Shu, earlier espoused by Shen Buhai.[146] Shen Buhai largely recommended that rulers investigate their ministers' performance, checking his ministers’ reports while remaining calm and secretive (Wu wei). The ruler then promotes and demotes according to the match between 'performance' and proposal (Xing Ming).[147]

Though the syncretic Han Feizi speaks on what may be termed 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."[148] Han Fei considered the ruler to be in a situation of constant danger from his aides,[149] and the target of Han Fei's Fa in particular are the scholarly bureaucracy and ambitious advisers - the Confucians.[150] Saying that "superior and inferior fight a hundred battles a day",[151] long sections of the Han Feizi provide example of how ministers undermined various rules, and focus on how the ruler can protect himself against treacherous ministers, emphatically emphasizing their mutually different interests.[152]

Shen Buhai[edit]

EN-HAN260BCE.jpg

The Huainanzi says that when Shen Buhai lived the officials of the state of Han were at cross-purposes, and did not know what practices to follow.[153][154] Born around 400 BC, Shen Buhai was Chancellor of Han from 351 BC to 337 BC.[155] He emphasizes the importance of selecting able officials as much as Confucius did, but insists on "constant vigilance over their performance",[156] never mentioning virtue. 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.[157]

Ideally, Shen Buhai's ruler had the widest possible sovereignty, was intelligent (if not a sage), had unlimited control of the bureaucracy, and had to make all crucial decisions himself. However, compared with Shang Yang, Shen Buhai refers to the ruler in abstract terms - he is simply the head of a bureaucracy.[158]

Shen Buhai insisted that the ruler must be from fully informed on the state of his realm, but couldn't afford to get caught up in details and was advised to listen to no one - and does not, as Creel says, have the time to do so. The way to see and hear independently is the mechanical or operational decision making of Fa,[159] which Sinologist Herrlee G. Creel translates as "method",[160][161] grouping particulars into categories. By comparison, the ruler's eyes and hears will make him deaf and blind (unable to obtain accurate information).[162]

Shu or "technique"[edit]

The earliest known written documentation for the Chinese abacus, the Suan Pan, dates to the 2nd century BC.

Because Fa has diverse meaning, for clarification, Shen's successors often used the term Shu (technique) for his administrative method (Fa) and other techniques, and thus Feng Youlan called Shen Buhai the leader of the group [in the Legalist school] emphasizing Shu, or methods (Fa) of government.[163]

Creel believed that the term Shu originally had the sense of numbers, with implicit roots in statistical or categorizing methods, using record keeping in financial management as a numerical measure of accomplishment.[105][164] Creel notes that command of finance was generally held by the head of government from the beginning of the Zhou dynasty; an example of auditing dates to 800 B.C., and the practice of annual accounting solidified by the Warring States Period and budgeting by the first century B.C.[165]

Shen's doctrines, or Shu, are described as concerned almost exclusively with the "ruler's role and the methods by which he may control a bureaucracy", that is, its management and personnel control: the selection of capable ministers, their performance, and the monopolization of power.[166] Shu may therefore be considered the most crucial element in controlling a bureaucracy.[167] More specifically, Shen Buhai's methods (Fa) focused on "scrutinizing achievement and on that ground alone to give rewards, and to bestow office solely on the basis of ability".[168] Liu Xiang wrote that Shen Buhai advised the ruler of men use technique (shu) rather than punishment, relying on persuasion to supervise and hold responsible, though very strictly.[169]

In the Guanzi the artisan's Shu is explicitly compared to that of the good ruler.[170] The History of the Han (Han shu) lists texts for Shu as devoted to "calculation techniques" and "techniques of the mind", and describes the Warring States period as a time when the shu arose because the complete tao had disappeared.[171] Hsu Kai (920-974 AD) calls Shu a branch in, or components of, the great Tao, likening it to the spokes on a wheel. He defines it as "that by which one regulates the world of things; the algorithms of movement and stillness." Mastery of techniques was a necessary element of sagehood.[171]

Another example example of Shu is Chuan-shu, or "political maneuvering". The concept of Ch'uan, or "weighing" figures in "Legalist" writings from very early times. It also figures in Confucian writings as at the heart of moral action, including in the Mencius and the Doctrine of the Mean. Weighing is contrasted with "the standard". Life and history often necessitate adjustments in human behavior, which must suit what is called for at a particular time. It always involves human judgement. A judge that has to rely on his subjective wisdom, in the form of judicious weighing, relies on Ch'uan. The Confucian Zhu Xi, who was notably not a restorationist, emphasized expedients as making up for incomplete standards or methods.[172]

Wu wei[edit]

Zhaoming Mirror frame, Western Han dynasty
(People) go along with whatever has the backing of the authorities and adjust their words and actions according to whichever way the wind is blowing. They think that they will thus avoid mistakes. Deng Xiaoping[173]
Further information: Wu wei

The Han Feizi repeatedly injuncts the ruler not to concern himself with details, a practice intended to enhance his power through delegation. Called "rule by non-activity" and strongly advocated by Han Fei, during the Han dynasty, up until the reign of Han Wudi rulers confined their activity "chiefly to the appointment and dismissal of his high officials", a plainly "Legalist" practice inherited from the Qin dynasty.[174] This "conception of the ruler's role as a supreme arbiter, who keeps the essential power firmly in his grasp" while leaving details to ministers, has a "deep influence on the theory and practice of Chinese monarchy."[175]

Shen Buhai used the term Wu wei to mean that the ruler, though vigilant, should not interfere with the duties of his ministers.[176] Shen Dao similarly argued for Wu wei in this sense, saying

The Dao of ruler and ministers is that the ministers labour themselves with tasks while the prince has no task; the prince is relaxed and happy while the ministers bear responsibility for tasks. The ministers use all their intelligence and strength to perform his job satisfactorily, in which the ruler takes no part, but merely waits for the job to be finished. As a result, every task is taken care of. The correct way of government is thus.[177][178]

Though not a conclusive argument against proto-Taoist influence, Shen's Buhai's Taoist terms do not show evidence of explicit Taoist usage (Confucianism also uses terms like "Tao", or Wu wei), lacking any metaphysical connotation.[179] The Zhuangzhi references Shen Dao rather than the other way around.[180] The Han Feizi has a commentary on the Tao Te Ching, but references Shen Buhai rather than Laozi for Wu wei.[181] Since the bulk of both the Tao Te Ching and the Zhuangzhi appear to have been composed later, Sinologist Herrlee G. Creel argued that it may therefore be assumed that Shen influenced them,[176] much of both appearing to be counter-arguments against "Legalist" controls.

Though espousing an ultimate inactive end, the term does not appear in the Book of Lord Shang, ignoring it as an idea for control of the administration.[181]

Shen Buhai argued that if the government were organized and supervised relying on proper method (Fa), the ruler need do little - and must do little.[182] Unlike Shang Yang and Han Fei, Shen did not consider the relationship between ruler and minister antagonistic necessarily.[183] Apparently paraphrasing the Analects, Shen Buhai's statement that those near him will feel affection, while the far will yearn for him,[184] stands in contrast to Han Fei, who considered the relationship between the ruler and ministers irreconcilable.[56] But Shen still believed that the ruler's most able ministers are his greatest danger,[185] and is convinced that it is impossible to make them loyal without techniques.[186]

Creel explains: "The ruler's subjects are so numerous, and so on alert to discover his weaknesses and get the better of him, that it is hopeless for him alone as one man to try to learn their characteristics and control them by his knowledge... the ruler must refrain from taking the initiative, and from making himself conspicuous - and therefore vulnerable - by taking any overt action."[187]

Shen advises the ruler to keep his own counsel, hide his motivations and conceal his tracks in inaction, availing himself of an appearance of stupidity and insufficiency.[188]

If the ruler's intelligence is display, men will prepare against it; If his lack of intelligence is displayed, they will delude him. If his wisdom is displayed, men will gloss over (their faults); if his lack of wisdom is displayed, they will hide from him. If his lack of desires is displayed, men will spy out his true desires; if his desires are displayed, they will tempt him. Therefore (the intelligent ruler) says 'I cannot know them; it is only by means of non-action that I control them.

— Shen Buhai[189]

This Wu wei (or nonaction) might be said to end up the political theory of the Legalists, if not becoming their general term for political strategy, playing a "crucial role in the promotion of the autocratic tradition of the Chinese polity". The (qualified) non-action of the ruler ensures his power and the stability of the polity.[190]

Relying on method (Fa) conceals the ruler's intentions, likes and dislikes, skills and opinions. Not acting himself, he can avoid being manipulated.[191] The ruler plays no active role in governmental functions. He should not use his talent even if he has it. Not using his own skills, he is better able to secure the services of capable functionaries. Creel argues that not getting involved in details allowed Shen's ruler to "truly rule", because it leaves him free to supervise the government without interfering, maintaining his perspective.[192] Seeing and hearing independently, the ruler is able to make decisions independently, and is, Shen says, able to rule the world thereby.[193]

Shen says:

The ruler is like a mirror, reflecting light, doing nothing, and yet, beauty and ugliness present themselves; (or like) a scale establishing equilibrium, doing nothing, and yet causing lightness and heaviness to discover themselves. Method (Fa) is complete acquiescence. (Merging his) personal (concerns) with the public (weal), he does not act. He does not act, and yet the world itself is complete.

— Shen[194]

The Han Feizi's commentary on the Tao Te Ching similarly asserts that perspectiveless knowledge - an absolute point of view - is possible, though the chapter may have been one of his earlier writings.[195] Another chapter reads:

[The bright ruler] is undifferentiated and quiescent in waiting, causing names (roles) to define themselves and affairs to fix themselves. If he is undifferentiated then he can understand when actuality is pure, and if he is quiescent then he can understand when movement is correct.[196][197]

Xing-Ming, or performance and title[edit]

"The Way of Listening is to be giddy as though soused. Be dumber and dumber. Let others deploy themselves, and accordingly I shall know them."
Right and wrong whirl around him like spokes on a wheel, but the sovereign does not complot. Emptiness, stillness, non-action—these are the characteristics of the Way. By checking and comparing how it accords with reality, [one ascertains] the “performance” of an enterprise.[198]
Han Fei
Detail of The Spinning Wheel, by Chinese artist Wang Juzheng, Northern Song Dynasty (960–1279)[199]

In the Han Dynasty secretaries of government who had charge of the records of decisions in criminal matters were called Xing-Ming, which Sima Qian(145 or 135 – 86 BC) and Liu Xiang(77 BC – 6 BC) attributed to the doctrine of Shen Buhai(400 BC – c. 337 BC).[200][201] Liu Xiang goes as far as to define Shen Buhai's doctrine as Xing-Ming.[202] Shen actually used an older, more philosophically common equivalent, ming-shih, linking the "Legalist doctrine of names" with the name and reality (ming shih) debates of the school of names - another school evolving out of the Mohists.[203] Such discussions are also prominent in the Han Feizi.[204]

Sima Qian and Liu Xiang define Xing-Ming as "holding actual outcome accountable to Ming".[14][205] Ming sometimes has the sense of speech - so as to compare the statements of an aspiring officer with the reality of his actions - or reputation, again compared with real conduct (xing "form" or shih "reality").[206]

The logician Deng Xi(died 501 BCE) is cited by Liu Xiang for the origin of the principle of Xing-Ming. Serving as a minor official in the state of Zheng, he is reported to have drawn up a code of penal laws. Associated with litigation, he is said to have argued for the permissibility of contradictory propositions, likely engaging in hair-splitting debates on the interpretation of laws, legal principles and definitions.[207]

Shen Buhai solves this through Wu wei, or not getting involved, making an official's words his own responsibility.[200] Shen Buhai says, "The ruler controls the policy, the ministers manage affairs. To speak ten times and ten times be right, to act a hundred times and a hundred times succeed - this is the business of one who serves another as minister; it is the not the way to rule."[156] Noting all the details of a claim and then attempting to objectively compare them with his achievements, through passive mindfulness (the "method of yin") Shen Buhai's ruler neither adds to nor detracts from anything, giving names (titles/offices) on the basis of claim.[200]

Focusing more on investigation and persuasion, we have no basis to suppose that Shen advocated the doctrine the doctrine of rewards and punishments.[208] But Han Fei was notoriously focused on what he termed Xing-Ming,[209] which functions through binding declarations, like a legal contract. Verbally committing oneself, a candidate is allotted a job, indebting him to the ruler.[210] His variant is relatable to the Confucian tradition in which a promise or undertaking, especially in relation to a government aim, entails punishment or reward,[211] though the tight, centralized control of both philosophers conflicted with the Confucian idea of the autonomous minister.[212]

Rather than having to look for "good" men, Xing-Ming (or ming-shih) can seek the right man for a particular post, though doing so implies a total organizational knowledge of the regime.[213] More simply though, it can allow ministers to comes forward with proposals of specific cost and time frame, leaving their definition to competing ministers - the doctrine favored by Han Fei. Holding them responsible for exactness, this process combats the tendency to promise too much.[214]

Assessing the accountability of his words to his deeds,[215] the ruler tests abilities, and attempts to "determine rewards and punishments in accordance with a subject's true merit" (using Fa/administrative method),[216] ensuring that only those competent would be admitted to, or remain in office.[215] It is said that using names (ming) to demand realities (shih) exalts superiors and curbs inferiors,[217] provides a check on the discharge of duties, and naturally results in emphasizing the high position of superiors, compelling subordinates to act in the manner of the latter.[218]

In Chinese Thought: An Introduction S.Y. Hsieh suggests a set of assumptions underlying the concept of (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.[219]

Regarded as being in opposition to Confucians, as early as the Eastern Han its full and original meaning would be forgotten.[220] Yet the writings of "Tung-Cung-shu" discuss personnel testing and control in a manner sometimes hardly distinguishable from the Han Feizi. Like Shen Buhai, he dissuades against reliance upon punishments. As Confucianism ascended the term disappeared,[221] though it appears in later dynasties.

Shen Dao[edit]

Iron weight dated from 221 BC with 41 inscriptions written in seal script about standardizing weights and measures during the 1st year of Qin dynasty
Mold for making banliang coins

Shen Dao contrasts personal opinions with the merit of the objective standard, fa, as preventing personal judgements or opinions from being exercised; personal opinions destroy the law (Fa). Shen Dao's ruler "does not show favoritism toward a single person."[55] He cautions the ruler against relying on his own personal judgment.[222]

Shen Dao's book states that "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..."

Compared with the egoist Yang Chu, Shen Dao is characterized by the Zhuangzhi as impartial and lacking selfishness, his great way embracing all things.[223] Wang Fuzhi speculated that the chapter "Essay on Seeing Things as Equal" of the Zhuangzhi was actually written by Shen Dao.[224] Upholding measurements and capacities, 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.[55]

When an enlightened ruler establishes [gong] ("duke" or "public interest"), [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...[55]

Apart from his administrative focus, he also uses it for law where appropriate. Shen Dao was referred to by the Confucian Xun Kuang as "beclouded by fa". Though many passages of Shen Buhai remain extant, his impersonal administration uses Fa (protocol) in much the same sense, to determine rewards and punishments in accordance with a subject's "true" merit.

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... people will be rewarded differently for the same merit and punished differently for the same fault. Resentment arises from this."[225]

Situational advantage[edit]

The Chinese Immortal Han Xiangzi riding a cloud
A floating seed of the p'eng plant, meeting a whirlwind, may be carried a thousand li, because it rides on the power (shi) of the wind. If, in measuring an abyss, you know that it is a thousand fathoms deep, it is owing to the figures which you find by dropping a string. By depending on the power (shi) of a thing, you will reach a point, however, distant it may be, and by keeping the proper figures, you will find out the depth, however deep it may be. The Book of Lord Shang

Generally speaking, the "Fa-Jia" understood that the power of the state resides in social and political institutions, and are innovative in their aim to subject the state to them.[226] Shen Dao's theory on power echoes Shen Buhai, who says “He who is a singular decision-maker can become the sovereign of All under Heaven",[227] and may otherwise have been borrowed from the Book of Lord Shang.[228] Like Shen Buhai, Shen Dao largely focused on statecraft.[229] Confucian Xun Kuang never references Shen Dao in relation to power, focusing on his theories on Fa (administrative protocol).[230] Shen Dao is remembered for his theories on power (Shih) because Han Fei references him in this capacity for his similar arguments.[231]

Used in many areas of Chinese thought, Shih probably originated in the military field.[232] Diplomats relied on concepts of situational advantage and opportunity, as well as secrecy (shu) long before the ascendency of much concept of sovereignty or law, and were used by kings wishing to free themselves from the aristocrats.[233] Sunzi (Art of War) would go on to incorporate Taoist philosophy of inaction and impartiality, and Legalist punishment and rewards as systematic measures of organization, recalling Han Fei's concepts of power (shih) and tactics (shu).[234]

For Shen Dao, "Power" (Shih) refers to the ability to compel compliance; it requires no support from the subjects, though it does not preclude this.[231] Shen Dao's theory on power states that morality together with intellectual capability are insufficient to rule,[231] but position of authority is enough to attain influence and subdue the worthy.[222]

Its (Shih's) merit is that it prevents people from fighting each other; political authority is justified and essential on this basis.[235] Shen Dao says: "When All under Heaven lacks the single esteemed [person], then there is no way to carry out the principles [of orderly government, li 理]…. Hence the Son of Heaven is established for the sake of All under Heaven... All under Heaven is not established for the sake of the Son of Heaven…"[236]

Leadership is not a function of ability or merit, but is given by some a process, such as giving a leader to a group.[237] "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...[55][238] Their talent cannot be displayed without power.[239] Shen Dao said: "The flying dragon rides on the clouds and the rising serpent wanders in the mists. But when the clouds disperse and the mists clear up, the dragon and the serpent become the same as the earthworm and the large winged black ant because they have lost what they ride."[231]

Usually disregarded by the Fa-Jia, Shen Dao considered moral capability useful in terms of authority. If the ruler is inferior but his command is practised, it is because he is able to get support from people.[231] Han Fei criticizes this as insufficient; power should be amassed through laws (fa),[240] and government by moral persuasion and government by power (shih) are mutually incompatible.[231] The ruler's authority should depend neither on the ruler's personal qualities or cultivation, but on law (fa).[241] Han Fei does stress that the leader has to occupy a position of substantial power before he is able to use these or command followers. Competence or moral standing do not allow command.[239]

For Han Fei, in order to actually influence, manipulate or control others in an organization and attain organizational goals it is necessary to utilize tactics (shu), regulation (fa), and rewards and punishment - the "two handles".[242][243] Reward and punishment determine social positions - the right to appoint and dismiss. In line with Shih, these should never be relegated. The ruler must be the sole dispenser of honors and penalties.[244] If these are delegated to the smallest degree, and people are appointed on the basis of reputation or worldly knowledge, then rivals will emerge and the ruler's power will fall to opinion and cliques (the ministers).

Han Fei[edit]

While the school of Shen Buhai may not have been hostile to Confucius,[194] Han Fei lists the Confucians among his "five vermin."[245] As with Shang Yang, Han Fei rejects past models as unverifiable,[246] and says of the Confucians that "In their settled knowledge, the literati are removed from the affairs of the state... What can the ruler gain from their settled knowledge"?[247]

Han Fei calls the Confucian teaching on love and compassion for the people the "stupid teaching" and "muddle-headed chatter",[248] the emphasis on benevolence an "aristocratic and elitist ideal" demanding that "all ordinary people of the time be like Confucius' disciples". As with Shang Yang, Han Fei 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.[49][249]

Intending his Dao (way of government) to be both objective and publicly projectable,[250] Han Fei argued that disastrous results will occur if the ruler acts on arbitrary ad-hoc decisions, such as those based on relationships or morality - the political tradition of the Confucians. Neither can he act on a case-by-case basis, and so must establish an overarching system, acting through Fa (administrative methods or standards). Fa is not partial to the noble, does not exclude ministers, and does not discriminate against the common people.[251]

Han Fei says:

 When a sage governs a state, he does not wait for people to be good in deference to him. Instead, he creates a situation in which people find it impossible to do wrong. If you wait for people to be good in deference to you, you will find that there are no more than ten good people within the borders of your state. But if you create a situation in which people find it impossible to do wrong, the entire state can be brought into compliance. In governing, one must use what works in most cases and abandon what works in only a few cases. Therefore, the sage does not work on his virtue, he works on Fa.

Linking the "public" sphere with justice and objective standards, for Han Fei, the private and public had always opposed each other.[55] One of Han Fei's primary notions, zhi emphasizes straightness and the notion of an unbiased heart, saying "What we mean by zi is that, in doing one's duty, to act always impartially and honestly with an unbiased heart." This notion of honest conduct with unbiased intention underlies Qin and Han penal law. Biased judgement, or purposefully handing down judgements in which the punishment is not appropriate to the crime, is defined as a serious crime called buzhi ("not straight"). It is clearly distinguished from mistakes in judging or punishing a crime. Buzhi officials were sent to build the great wall, or exiled to the frontier. A son might be considered crooked for reporting his father, as trying to gain a reputation of honesty at the expense of his father's.[252]

Talk of morality endangers the ruler by empowering ministers. Politics are the only means of preserving the power of the state,[253] and standards (Fa), justified as preventing disputes in language or knowledge, are the ruler's only protection.[241] Providing reward and penalty automatically, state functions must be strictly defined through binding, general rules, removing from discussion what would otherwise only be opinion, and preventing conflicts of competencies, undue powers or profits. To this end, Han Fei's high officials focus solely on definition through calculation and the construction of objective models, judged solely by effectiveness.[254]

Xing-Ming[edit]

Han Fei insists on the perfect congruence between words and deeds. Fitting the name is more important than results.[255] The completion, achievement, or result of a job is its assumption of a fixed form (xing), which can then be used as a standard against the original claim (ming).[256] Verbally committing himself, the candidate is allotted a job,[101] and rewarded or punished according to whether the results fit the task entrusted by their word, which a real minister fulfils.[255] A large claim but a small achievement is inappropriate to the original verbal undertaking, while a larger achievement takes credit by overstepping the bounds of office.[257]

Han Fei's "brilliant ruler" "orders names to name themselves and affairs to settle themselves."[257]

"If the ruler wishes to bring an end to treachery then he examines into the congruence of the congruence of hsing (form/standard) and claim. This means to ascertain if words differ from the job. A minister sets forth his words and on the basis of his words the ruler assigns him a job. Then the ruler holds the minister accountable for the achievement which is based solely on his job. If the achievement fits his job, and the job fits his words, then he is rewarded. If the achievement does not fit his jobs and the job does not fit his words, then he will be punished.[258]

Han Fei emphasizes that through this system, initially developed by Shen Buhai, uniformity of language could be developed,[106] functions could be strictly defined to prevent conflict and corruption, and objective rules (Fa) impervious to divergent interpretation could be established, judged solely by their effectiveness.[100] By narrowing down the options to exactly one, discussions on the "right way of government" could be eliminated. Whatever the situation brings is the correct Dao.[259]

The "Two Handles"[edit]

Mythical White Tiger Qin Shi Huang was called the "Tiger of Qin"
Supposing the tiger cast aside its claws and fangs and let the dog use them, the tiger would in turn be subjected by the dog. Han Fei Zi
A modern statue of the First Emperor and his attendants on horseback
The two August Lords of high antiquity grasped the handles of the Way and so were established in the center. Their spirits mysteriously roamed together with all transformations and thereby pacified the four directions. Huainanzi

Though not not entirely accurately, most Han works identify Shang Yang with penal law.[260] Its discussion of bureaucratic control is simplistic, chiefly advocating punishment and reward.[3] Shang Yang was largely unconcerned with the organization of the bureaucracy apart from this.[261]

The use of these "two handles" (punishment and reward) nonetheless forms a primary premise of Han Fei's administrative theory.[262] The Han Feizi may have been as a handbook for statecraft for his cousin, the King of Han.[263] 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 (Wu wei). 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. Fa (administrative standards) require no perfection on the part of the ruler.[264] His system, called xing-ming, "names" people to (objectively determined) positions and punishes based on job description. It is in line with both the Confucian and Mohist rectification of names.[265]

As a matter of illustration, if the "keeper of the hat" lays a robe on the sleeping Emperor, he has to be put to death for overstepping his office, while the "keeper of the robe" has to be put to death for failing to do his duty.[266] The philosophy of the "Two Handles" likens the ruler to the tiger or leopard, which "overpowers other animals by its sharp teeth and claws"(rewards and punishments). Without them he is like any other man; his existence depends upon them. To "avoid any possibility of usurpation 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 the ruler 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.[264]

Han Fei's rare appeal (among "Legalists") to the use of scholars (law and method specialists) makes him comparable to the Confucians, in that sense. The ruler cannot inspect all officials himself, and must rely on the decentralized (but faithful) application of laws and methods (fa). Contrary to Shen Buhai and his own rhetoric, Han Fei insists that loyal ministers (like Guan Zhong, Shang Yang, and Wu Qi) exist, and upon their elevation with maximum authority. Though Fa-Jia are generally thought to seek to enhance the power of the ruler, this scheme nonetheless effectively neutralizes him, reducing his role to the maintenance of the system of reward and punishments, determined according to impartial methods and enacted by specialists expected to protect him through their usage thereof.[267][268]

Enlightened absolutism[edit]

Sinologist Xuezhi Guo contrasts the Confucian "Humane ruler" with the "Legalists" as "intending to create a truly 'enlightened ruler'". He quotes Benjamin I. Schwartz as describing the features of a truly "Legalist" "enlightened ruler":[269]

"He must be anything but an arbitrary despot if one means by a despot a tyrant who follows all his impulses, whims and passions. Once the systems which maintain the entire structure are in place, he must not interfere with their operation. He may use the entire system as a means to the achievement of his national and international ambitions, but to do so he must not disrupt its impersonal workings. He must at all times be able to maintain an iron wall between his private life and public role. Concubines, friends, flatterers and charismatic saints must have no influence whatsoever on the course of policy, and he must never relax his suspicions of the motives of those who surround him."[269][270]

As easily as mediocre carpenters can draw circles by employing a compass, anyone can employ the system Han Fei envisions.[271] The enlightened ruler restricts his desires and refrains from displays of personal ability or input in policy. Capability is not dismissed, but the ability to use talent will allow the ruler greater power if he can utilize others with the given expertise.[272] Laws and regulations allow him to utilize his power to the utmost. Adhering unwaveringly to legal and institutional arrangements, the average monarch is numinous.[273] A.C. Graham writes,

(Han Fei's) ruler, empty of thoughts, desires, partialities of his own, concerned with nothing in the situation but the 'facts', selects his ministers by objectively comparing their abilities with the demands of the offices. Inactive, doing nothing, he awaits their proposals, compares the project with the results, and rewards or punishes. His own knowledge, ability, moral worth, warrior spirit, such as they may be, are wholly irrelevant; he simply performs his function in the impersonal mechanism of state."[274]

The ruler simply checks "shapes" against "names" and dispenses rewards and punishments accordingly.[275] Submerged by the system he supposedly runs, the alleged despot disappears from the scene.[276]

Imperial China[edit]

Qin and Han[edit]

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

The 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 ruler'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.

However, 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, under what is commonly thought of as the first Chinese Empire, the Qin dynasty. The Qin document "On the Way of Being an Official" proclaims the ideal of the 0official as a responsive conduit, transmitting the facts of his locale to the court, and its 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.[79]

The Shiji records Li Si as repeatedly recommending "supervising and holding responsible", which he attributed to Shen Buhai.[277] A stele set up by Qin Shi Huang memorializes him as a sage that, taking charge of the government, established Xing-Ming.[278] As protégé of a Han Dynasty Commandant of Justice that had studied under Li Si, Jia Yi was also student of Shen Buhai.[279]

It is well known, as recorded in the Shiji and Book of Han, that the Han dynasty took over the governmental institutions of the Qin dynasty almost unchanged,[280] but in its early decades was not a centralized state, parcelling out the country to a number of relatives, who as vassal kings who ruled with full authority.[281]

The reputation of Legalism suffered from its association with the former Qin dynasty. Sima Tan, though the hailing the Fa "school" for "honouring 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."[282] Though different philosophically, the pairing of figures like Shen Buhai and Shang Yang along with Han Fei became common in the early Han dynasty, Sima Tan glossing the three as Fa Jia and his son as adherents of "xing ming" ("performance and title").[283]

The syncretic 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."[284]

Despite this, 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 underlay Chinese political and juridical institutions.[285] The influence of Legalism on Han Confucianism is very apparent, adopting Han Fei's emphasis of a supreme ruler and authoritarian system rather than Mencius's devaluation thereof, or Xun Kuang's emphasis on the Tao.[286]

Shen Buhai's book appears to have been widely studied in the beginning of the Han era,[287] and the concept attributed to him, Shu (techniques) would become a new structure by which some thinkers explained virtue. The writings of early Han scholar Jia Yi's simply blamed the fall of the dynasty on the education of the second emperor.[288] Jia Yi's (200-168 AD) Hsin-shu, undoubtedly influenced by the Legalists, describes Shen Buhai's Shu as a particular method of applying the Tao, or virtue, bringing together Confucian and Taoist discourses. He uses the imagery of the Zhuangzhi of the knife and hatchet as examples of skillful technique in both virtue and force, saying "benevolence, righteousness, kindness and generosity are the ruler's sharp knife. Power, purchase, law and regulation are his axe and hatchet".[289]

Jia Yi drew up elaborate plans for reorganizing the bureaucracy, which Emperor Wen of Han put into effect. Wen himself studying Xing-Ming, the Shiji states that Wen was "basically fond of Xing-Ming." Jia Yi advised Wen to teach his heir to use Shen Buhai's method, so as to be able to "supervise the functions of the many officials and understand the usages of government." Pressure groups saw Jia Yi's dismissal, but was brought back to criticize the government. Two advisors to Wen's heir, Emperor Jing of Han were students of Xing-Ming, one passing the highest grade of examination, and admonished Jing for not using it on the feudal lords.[290]

By the time of the civil service examination was put into place, Confucian influence saw outright discussion of Shen Buhai banned. Xing-Ming is not discussed by Imperial University's promoter, the famous Confucian Dong Zhongshu. However, the Emperor under which it was founded, Emperor Wu of Han, was both familiar with and favorable to Legalist ideas, and the civil service examination did not come into existence until its support by Gongsun Hong, who did write a book on Xing-Ming.[291] The Emperor Xuan of Han was still said by Liu Xiang to have been fond of reading Shen Buhai, using Xing-Ming to control his subordinates and devoting much time to legal cases.[292] Zhuge Liang attached great importance to the works of Shen Buhai and Han Fei.[293]

Shen Buhai never attempts to articulate natural or ethical foundations for his Fa (administrative method), nor does he provide any metaphysical grounds for his method of appointment (later termed "xing-ming"),[294] but later texts do. The Huang-Lao work Boshu grounds fa and xing-ming in the Taoist Dao.[295]

The Discourses on Salt and Iron's Lord Grand Secretary uses Shang Yang in his argument against the dispersion of the people, stating that "a Sage cannot order things as he wishes in an age of anarchy". He recalls Lord Shang's chancellery as firm in establishing laws and creating orderly government and education, resulting in profit and victory in every battle.[296] 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,[297] but his policies and his most trusted advisers were Legalist.[298] Michael Loewe called the reign of Emperor Wu the "high point" of Modernist (classically justified Legalist) policies, looking back to "adapt ideas from the pre-Han period."[299] 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").[300]

During the decay of the Han Dynasty, many scholars again took up an interest in "Legalism", Taoism and even Mohism.[301] Han sources "came to treat Legalism as an alternative to the methods of the Classicists."[302] It became commonplace to adapt Legalist theories to the Han state by justifying them using the classics, or combining them with the notion of the "way" or "pattern of the cosmos" ("The Way gave birth to law" Huangdi Sijing). Some scholars "mourne" the lack of pure examples of Daoism, Confucianism and Legalism in the Han dynasty more generally.[303] 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,[304] and the Huang-Lao Taoists.[305]

Post Han[edit]

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."[306] The tendency toward Legalism is apparent in intellectual circles toward the end of the Han dynasty, and would be reinforced by Cao Wei. Dispossessed peasants were organized into paramilitary agricultural colonies to increase food production for the army, and penal legislation increased. These policies would be followed by the Northern Wei.[307]

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".[308] But Wen might to be said to have already been steeped in a Legalist tradition followed by the aristocratic institutions of the northern dynasties, who concerned themselves with functional organization and social hierarchy. The Sui dynasty and Tang dynasty were largely based upon the Western Wei and Northern Zhou, refining pre-existing institutions and taking measures against the aristocracy.[309]

Quoting Arthur Wright, Author Hengy Chye Kiang calls the Sui dynasty a "strong autocratic power with a penchant for Legalist philosophy", and it's prime minister Gao Jiong "'a man of practical statecraft" recalling the great Legalist statesmen.[310] His influence saw the replacement of Confucians with officials of "Legalist" outlook favoring centralization.[311]

Ming dynasty[edit]

Li Shanchang (1314-1390), a founding Prime Minister of the Ming dynasty studied Chinese Legalism. It is said that Li was the Emperor Hongwu's closest comrade during the war, and greatest contributor to his ultimate victory and thus establishment of the Ming Dynasty.[312] Deeply trusted by the Emperor,[313] Hongwu consulted Li on institutional matters.[314] Li planned the organization of the "six ministries" and shared in the drafting of a new law code. He established salt and tea monopolies based on Yuan institutions, eliminated corruption, restored minted currency, opened iron foundries, and instituted fish taxes. It is said that revenues were sufficient, yet the people were not oppressed.[315] Most of his other activities seem to have supported Hongwu Emperor's firm control of his regime. Mainly responsible for ferreting out disloyalty and factionalism among military officers, he used a reward and punishment system reminiscent of the Han Feizi, and may have had a kind of secret police in his service. At times he had charge of all civil and military officials in Nanking.[316]

In 1572 Zhang Juzheng, a legalistic, prime-minister like figure of the Ming Dynasty, had the young emperor of the time issue a warning edict against China's bureaucracy with the reference that they had abandoned the public interest for their own private interests. It reads: "From now on, you will be pure in your hearts and scrupulous in your work. You will not harbor private designs and deceive your sovereign... You will not complicate debates and disconcert the government." It suggests that good government will prevail as long as top ministers were resolute in administration of the empire and minor officials were selflessly devoted to the public good. It is said that the officials became "very guarded and circumspect" following its release. His "On Equalizing Taxes and Succoring the People" postulated that the partiality of local officials toward powerful local interests was responsible for abuses in tax collection, hurting both the common people and the Ming state.[317]

Zhang Juzheng wrote that "it is not difficult to erect laws, but it is difficult to see they are enforced." His Regulation for Evaluating Achievements (kao cheng fa) assigned time limits for following government directives and made officials responsible for any lapses, enabling Zhang to monitor bureaucratic efficiency and direct a more centralized administration. That the rules were not ignored are a testament to his basic success.[318]

Modern[edit]

The Yongzheng Emperor of the Qing dynasty was said by a Qing document "Teng Ssu-yu" to "hsun ming tse she(romanization)", or "demand performance in accordance with title", a near-verbatim usage of the Han Feizi.[319]

On account of Fa-Jia ignoring differences among subjects,[320] early modern Chinese scholarship often viewed it within the context of western "rule of law",[14] and from the 1920s on as being in a historical struggle with the Confucian "rule of men".[320]

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.[321]

A poster from 1974 by Zhang Yan (张延). It reads "Criticize Lin, criticize Confucius - it is the most important matter for the whole party, the whole army and the people of the whole country."

The Communists would use the Fa-Jia in their criticism of Confucianism, describing the conflict between the two as class struggle.[322] Appeals to the Fa-Jia for solutions became common after the Great Leap Forward. [323] Fazhi, another historical term for "Legalism", would be used to refer to both socialist legality and Western rule of law. Still contrasted with renzhi (or rule of persons), most Chinese wanted to see it implemented in China.[324] Rule of law again gained prominent attention in the 1970s after the Cultural Revolution, in Deng Xiaoping's platform for modernization.

Two decades of reform, Russia's collapse and a financial crisis in the 1990s only served to increase its importance, and the 1999 constitution was amended to "provide for the establishment of a socialist rule-of-law state", aimed at increasing professionalism in the justice system. Signs and flyers urged citizens to uphold the rule of law.[325] In the following years figures like Pan Wei, a prominent Beijing political scientist, would advocate a consultative rule of law with a redefined role for the party and limited freedoms for speech, press, assembly and association.[326]

Xingzhong Yu, Professor at Cornell (previously Hong Kong University) describes the PRC through a framework of "State Legalism".[327]

As Communist ideology plays a less central role in the lives of the masses in the People's Republic of China, top political leaders of the Communist Party of the People's Republic of China such as Xi Jinping continue the rehabilitation of figures like Han Fei into the mainstream of Chinese thought alongside Confucianism, both of which Xi sees as relevant.[328] Han Fei gained new prominence with favourable citations. One sentence of Han Fei's that Xi quoted appeared thousands of times in official Chinese media at the local, provincial, and national levels.[329]

As "Realists"[edit]

In the west some early modern scholars used the term "Realist", believing that said "Realists", rejecting all appeals to tradition and the supernatural, held that law should replace morality.[330][331] 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,[332] 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'".[333] 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."[334]

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.[335] In the earlier 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."[336]

Ross Terrill writes that "Chinese Legalism is as Western as Thomas Hobbes, as modern as Hu Jintao. It speaks the universal and timeless language of law and order. The past does not matter, state power is to be maximized, politics has nothing to do with morality, intellectual endeavour is suspect, violence is indispensable, and little is to be expected rom the rank and file except and appreciation of force." He calls "Legalism" the "iron scaffolding of the Chinese Empire", but emphasizes the marriage between Legalism and Confucianism.[337]

Chinese law expert Peerenboom compares Han Fei against the accepted standards of legal positivism and concluded that he is a legal positivist. Establishing the ruler as the ultimate authority over the law, he also "shares the belief that morality and the law need not coincide."[338] The comparison is controversial, however.

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Sources[edit]

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External links[edit]