Legalism (Chinese philosophy)

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

Dating back to early China, Legalism (Chinese: 法家; pinyin: fă jiā) refers to what the west would term as the long-occulted Realpolitikal aspect of Chinese Philosophy concerned almost exclusively with administration, whose reformers innovated a rule by law. It scarcely addressed moral or philosophical questions. It is often considered to be one of the main philosophical currents or "schools" of the ancient Warring States period, openly avowed by the founders of the Chinese Imperial State, the Qin state and subsequent Qin dynasty.[1] Sinologist Creel writes: "If one wishes to exaggerate, it would no doubt be possible to translate (foundational Realist) Shen Buhai's term Shu, or technique, as 'science', and argue that Pu-hai was the first political scientist," though Creel does "not care to go this far".[2]

Following Lord Shang's synthesizing legal reforms, Qin Legalism transformed the peripheral Qin state into a militarily powerful and strongly centralized kingdom, developing the industriousness of the people and resources of the state, weakening the power of the feudal lords, reforming the aristocracy into an open officialdom ranked by merit, and unifying China's warring states into thirty-six administrative provinces with a standardized writing system under what is commonly thought of as the first Chinese Empire, the Qin dynasty, all based upon law.

Stressing that ministers and other officials too often abused their positions and sought favours from foreign powers, contemporary and most famous Legalist thinker Han Fei (韓非) (the most famous Legalistic scholar, contemporary of and most admired by the First Qin Emperor, Qin Shi Huangdi) urged rulers to observe that ministers' accomplishments were neither greater than nor inferior to their undertaking, handling them by a combination of favours and penalties.[3] Using his monopoly, the wise ruler could extend courtesy to those beneath him and indulge the advice of ministers without danger to himself or the state.

Basing himself upon the Qin's administrative successes and that of his own Han state, Fei synthesized in the Han Feizi the central administrative methodologies of his predecessors for practice under the aegis of the figure of a watchful sovereign autocrat, borrowing the innovation of law as a base:[4]

  1. Shi (Chinese: 勢; pinyin: shì; literally "legitimacy, power or charisma"): Reflecting the preceding Zhou Dynasty's stability and means, this masculine character represents force or military strength, the appearances or influence of the ruler ("virtue", or fame), and the state's situation or trend.[5] In the philosophy of Shen Dao and other realist philosophers, such establishment of order and the Sovereign's restraining hold on the state thereafter generates the stability necessary for any rule at all. The ruler exists to monopolize authority in-order to prevent its abuse by feudal magnates.[6] In the Book of Lord Shang, a strong inherited position supports even an ineffectual ruler, while a competent ruler without position effects nothing.[7] The book also explicitly associates Shi with measurement and statistics, a common theme in realist texts more generally, that being the awareness of the sovereign derived of position, of which such tools constitute a part and parcel. Chinese references to the square and compass actually go back to mythology, like that of Fuxi and Nuwa.
  2. Shu (Chinese: 術; pinyin: shù; literally "method, tactic or art"): Withdrawing from affairs except to survey the course of ministers, the ruler following the philosophy of Shen Buhai uses "technique", or special tactics or "secrets" to ensure that others do not gain control of the state, and obscures their motivations. Shen Buhai's technique did not use threatening or force, law, reward or penalty, all of which may be unsuitable for the exercise of one man.[8] Under the later Han Fei, obscuration of motivations translates into law enacted as the proposed policies of the ministers, then observed for outcome. By such means no can subvert the state through sycophancy toward the ruler, but may only try to advance by heeding orders and performing meritoriously. Shu is the aspect of Chinese Realpolitik most frequently related with Taoism and its famous wu-wei, or non-active action.
  3. Fa (Chinese: 法; pinyin: fǎ; literally "law or principle"): Fa Originally has a broader meaning of standards.[6] As far as the political tradition outside of Confucianism is concerned, and as far back as the Zhou, these would be the standards of the ruler,[9] though still considering custom. The Book of Lord Shang emphasizes the use of laws to reward those who obey them and penalize accordingly those who do not, institutionalizing the standards set by the ruler and acting as a guarantor for actions taken. The ruler is advised to generally use, if not hide behind the legal system to control the state; if the law is applied effectively, even a weak ruler will be strong, effectively regenerating the preceding principles. In the development of administrative methodology, Han Fei credits Yang with Ding Fa(定法), or fixing the standards, which were to be written clearly, made public and applied throughout the state. All persons under the jurisdiction of the ruler were equal before the law, referred to as Yi Min(一民), or treating the people as one.[10]

Introduction[edit]

The Chinese developed a vast, complex and highly centralized bureaucratic state hundreds of years before Europe's Christian era, with a united realm in the form of the Zhou Dynasty stretching back long before that. Chinese administrative organization, and to an extent technology like metallurgy, was "far in advance of the rest of the world" until "nearly the end of the eighteenth century", influencing western administrative practices not later than the twelfth century and playing a significant role in the development of the modern state, including use of the examination.[11][12][13][14]

The Chinese state was derived from what may be termed as "Chinese administrative philosophy". Its primary aspects formed in the Warring States period, that being the moralist Confucianism, and an often masked and unspoken administrative Realism or "Legalism", which both played important roles and advocated a unified China.[15] Consisting of methodologies for the ruler, in the west Legalist philosophy has often been compared with Machiavelli[16] and termed thusly as Chinese Realist, or in China as Legalist(fa-jia) in reference to trend's later Warring States developments.

Though each period's ideologies contributed to the other, Legalism ultimatly won out as the administrative background, though not the official ideology, because the naturalism of Taoism and the benevolence and virtue of Confucianism lacked succifient active political programs for political reform, not going beyond rhetoric on the past. Ultimately, political realists offered modern, rationalized political formulas, which the late Warring States Legalists based upon law.[17] Pre-Qin Confucianism, and contemporary Mohism with it, also advocated political autonomy for their followers, something which ran counter to any attempts to actually run an administration. Though post-Qin Confucianism was somewhat more integrated, it still often ran counter to the public administration or military capability.[18]

Terminology[edit]

Who utters a word creates himself a name; who has an affair creates himself a form. Compare forms and names and see if they are identical. Then the ruler will find nothing to worry about as everything is reduced to its reality.

Han Fei Zi "Chapter V. The Tao of the Sovereign"[19]

The term Legalist was applied by post-Qin historians looking to systematize history in reference to the later reformers of the period, classifying it as one of the four main schools of the Hundred Schools of Thought along with Confucianism, Taoism, and Mohism.[20] Like them it continued to influence Chinese politics, but the term itself is applied posthumously.[21] There was not generally any organized school of "Legalism"; when the Warring States period Qin state made the Book of Lord Shang official and distributed it to the households, Qin reformers accounted this as useless in teaching agriculture. Legalist rhetoric was intended for the ruler, not literary distribution.

As the later Allyn Ricket in Guanzi points out, the term "Legalist" has been used as descriptive of the writings and policies of earlier Spring and Autumn period (771-476 BCE) ministers even where "Realist Confucian" might make a better appellation.[21] Sinologists like Creel, tracing the base for later reform as far back as the early Zhou, prefer "Realist";[13][22] the legal aspect of administration came late to the era, making it an odd term for important foundational realists of similar style whose methods had yet to broach or even mention the establishment of any comprehensive legal system.

Early Background[edit]

Chinese Political development began long before the formalized order of the Warring States Legalists. The long-lasting, "feudalistic" Zhou dynasty, renowned for its stability, long and successfully relied on a system of less methodical interactions between the Emperor and the then-familial aristocracy, establishing the beginnings of a political methodology that could be built upon by later reformers.[13] Early Zhou dynasty documents, not generally referenced as Legalist, emphasized the use of reward and penalty characteristically associated with the Legalism of Lord Shang and Qin of the later, bureaucratizing Warring States Period.[23][24] The Shang shu credits the fifth king of Zhou, King Mu (r. 956-918 BCE), with establishing the first systematic legal code.[25]

Like others, the Chinese state claimed divine and moral authority. But this was not always the case. Discourse on virtue only emerged with the Zhou "Mandate of Heaven", and as late as the early Zhou morality had been implicit if not looser, only tightening with the tracking of patrilineal descent. In the primacy of the Zhou, blood-tied vassal relations needed not be more than informal, and "chivalry" only emerged in the conflict of the Spring and Autumn period.[26]

Following such a historical trend, later Taoists and political realists would come to define the development of morality as decay from a higher order, if not the beginning of disorder (from "Tao" emerges "Teh", or virtue, a semblance of order, and from there only disorder). Both Taoists and Legalist ideology would suggest a return to stability, or stillness. But unlike the Taoists, whose practice centres on inactivity, the Legalist's practice bases itself on active political reform to attain it's end. More simplisticly, the correct political order could be based on the measurement, or the statistical result of any program. Therefore, no dispute is necessary.

With the Zhou-innovated Mandate of Heaven some, like the Confucians, would see the decay as one pertaining to "virtue", and advocate it's practice among the disparate lords. The Mohists would advocate a universal fraternity. Looking back to a period of long, united stability, none of the major schools, the Chinese political body itself, or the Chinese more generally, viewed the political fragmentation as a positive development. Believing that a future restoration of order would result in the supremacy of their ideology, neither did any really believe in disputation.[27]

Later Background[edit]

In the Spring and Autumn period officials began reforms in order to support the authority, states, and militaries of the kings,[21] who solidified the sprawling Zhou realm into their own centralizing states. The Guanzi (text) suggests that much of early Spring and Autumn reformers were more moralistic, and did not always have much of a standardized or comprehensive code to rely upon, instead emphasizing the less systematized orders of the Sovereign (who became increasingly important), or, for instance, the importance of the "five classes" as a basis for order. [28] With the decay of the Zhou line the aristocracy no longer formed a harmonizing interest, and schismatic hostility between the Chinese states. The reforms of Guan Zhong(720-645 BC) applied levies and economic specializations at the village level instead of the aristocracy, and shifted administrative responsibility to professional bureaucrats.

During its expansionist phase(600BC), the hegemonic southern Chu dynasty appointed officials to manage the territories rather than merely create fiefdoms,[29] much to the opposition of its aristocracy. In 543 BC, like Shang Yang two hundred years later, Realist Zichan reformed the state of Zheng on a legal basis, enacting a harsh criminal code. He casted the state's code of law in bronze vessel to be displayed in public as a demonstration of permanence and incorruptibility, a first among the Zhou states. Shang Yang would make similiar such gesutes, and and like him Zhichan reformed agricultural and commercial laws and changed social norms, and discouraged superstition.[30][31]

Reform accelerated with the Warring States Period. Though earlier, successful and expansionist states like Chu had become corrupt, the monarchies concern for reform did not entertain entrenched interests, and many disenfranchised or opportunist aristocrats were increasingly attracted by the reform-oriented rulers, establishing political methodology for the management of bureaucracies. The trend of earlier Zhou decentralization was on the reverse.[22] Shang Yang of the outlying Qin state began reforms in 356 BC, importing and reforming the legal code of later Chu reformer Wu Qi, applying it more thoroughly.

In the sophisticated Warring States period Han, the already well developed officialdom presented its own problems. Shen Buhai – a minister from the Han state from 351 BC to 337 BC, sometimes called the "founder" of "Legalism" (though he did not use law), reframed for his own state the role of the old Zhou sovereign as interpersonal surveyor of the feudal realm in the direction of the officialdom.[22] The "outstandingly important" "foundational" Shen Buhai makes little to no reference to divine authority or ethics.[32] Shen did use Taoist terms like Tao (which, like Fa, Confucianism also uses) and Wu-Wei, but he uses them differently and was concerned neither with religion nor metaphysics. Shen was concerned almost exclusively with administration, and may have been one of the first to become aware of the centuries-long replacement of the feudal order by methodology for the control of what would become a bureaucracy.

Shen Buhai, Tact and Ministerial Management[edit]

If the sovereign does not compare what he sees and hears, he will never get at the real... If the ruler listens straight to one project alone, he cannot distinguish between the stupid and the intelligent. If he holds every projector responsible, ministers cannot confound their abilities.

Han Fei Zi "Chapter XXX. Inner Congeries of Sayings, The Upper Series: Seven Tacts"[33]

The early kings did not rely on their strength but on their power (shi); they did not rely on their belief but on their figures. A floating seed, 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 you find by dropping a string. So 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. In the darkness of the night, even a Li Lou cannot see a great mountain forest, but in the clear morning light, with the brilliant sun, he can distinguish the flying birds above, and below he can see an autumn hair, for the vision of the eye is dependent on the power of the sun. When the highest condition of power (shi) is reached, things are arranged without a multitude of officials and are made fitting by expounding the system.

Shang Jun Shu, "Interdicts and Encouragements"[34]

An opening chapter[35] of the Han Feizi states that "the territorial expansion of the feudal lords leads to the damnation of the Son of Heaven and the extraordinary wealth of ministers leads to the downfall of the ruler... The same reasons never fail to hold true." In-order to advance realpolitikal administration, the foundational reformer Shen Buhai formalized the concept of shu, or technique, which he considered to be the primary good of the ruler, for the management of the autocratic-bureaucratic model of administration.[22]

As part of his technique Shen Buhai (and the later Han Fei) advised that, inorder to ensure that all of his words be revered, a wise ruler should keep a low profile and hide their true intentions by feigning nonchalance and identify their position with the words of inferiors; theoretically, by cloaking both his desires and his will, rulers could force reliance upon their dictates and check sycophancy. If no one can fathom the ruler's motivations, no one can know what behaviour might help them manipulate the ruler and get ahead other than to heed orders and perform meritoriously. Legalism-proper included the use law as part of a program for indirect action.

Legalism ultimately reduced the importance of charisma, and thus the burden on the ruler. In Shen Buhai and Han Fei's programs, intelligent ministers were the ruler's most important aid; the minister’s duty was to understand specific affairs, and the ruler was responsible for correctly judging the performance of ministers, something Han Fei recommended be legally systematized. Rather then rely too much on his own judgement, plans could be judged by their results, and rewarded or penalized systematically. The Officialdom could judged by their concurrence (or rejection) of proposed programs.

Shen Dao and Power[edit]

Around the same time as Shen Buhai, Warring States realist Shen Dao emphasized that the head of state was endowed with shi, the "mystery of authority". Chinese Realists recognized that the Emperor’s very figure brought legitimacy, but it is the position of rulers that is powerful, not the rulers themselves. Shen Dao and later Han Fei wrote that the ruler alone should hold the powers of reward and penalty; if anyone freely exercised one or the other, they would usurp if not ruin the state for private benefit. Under the later Han Fei, these should not be executed except by the ruler's legal code.

In Shen Dao's context much of his doctrine still meant military despotism and relations with a feudal aristocracy, as was the case earlier, but Shi was understood in realist texts more generally as the administrative if not statistical analysis of the trends, context, and facts. The ascertaining of such facts in congruence with the use of law and technique runs a common theme in realist texts.

Shang Yang emphasizes that the ability to bestow reward and penalty depended upon the material development of the state, and that of the security apparatus. In "Interdicts and Encouragements"[36] the Book of Lord Shang states that the correct method for obtaining knowledge for reward or penalty is power and figures, the obtaining of figures being dependent upon the power of things, such as measuring tools. Reward and penalty require consistency. If no measurement is mandatory, no figure is obtained. Yang emphasized that at the height of Shi, the need for rewards is minimized, and things are made fitting by expounding upon the system, or penalty. That being done, the capital can be used for further development instead.

Legalist syncreticism and private morality[edit]

Hearing virtuous words, one takes them to be capable, and on asking their partisans, one thinks that they are indeed so. Therefore, one prizes them without waiting for them to acquire actual merit, or one punishes them without waiting for them to commit crimes. How can one manage the people of an entire country in this way?[37]

Far from being discrete, the Warring States Realists were very much syncretic, drawing on earlier reforms of the Han, Chu and Wei states, and the intellectual activity like that of the other three "schools". Qin Legalist's emphasis on the definition of ranks and offices contrasts with the earlier Chu dissipation for lackthereof, having used officials to establish its state but failing to define or otherwise establish roles for them.

The hierarchical methods of the international Mohist school and Legalism related, both being antithetical to tradition,[38] having argued the primacy of authority outside the family. Much of Mohism was concerned with political philosophy and, like Legalism proponents, emphasized the meritocratic rather than aristocratic form of government that would be more likely get them into the offices of foreign states.

Earlier Spring and Autumn reformers had often related with morality, and administration with it, and did not quarrel with Confucianism. Later Legalist Ministers Li Si and Han Fei Zi were taught by heterodox Confucian Xunzi[39] who, rejecting the innate human goodness or morality of Mencius, emphasized the importance of education and ritual, which the Legalists re-simplified into Fa (code). Like Confucianism, the later Han Fei also emphasized the importance of loyalty, though more in relation the sovereign than the family.[22]

But though there were exchanges between them, later Realists (Legalists) sometimes rejected or even vilified Confucianism's private morality (or Mohism's watchful justice of ghosts). Confucianism emphasized family alliances,[40] ritual and considers morality in a context of cultivating "virtue" quite apart from law, or otherwise tried to extract its service thereto. Being melded with the conservative order, Warring State's period Realists, especially Shang Yang Legalism, flouted traditional and Confucian moralities in-order to advance reform. Sometimes considered foolish or unacceptable to state interests, Legalist's like Shang Yang restricted patrilineal descent to render such things utilitarian to the state. The still Qin still used patrilineal descent in their reward schemata, especially in the military.

Realists flouting traditional morality related with Taoism in differing degrees as background for their arguments. The later Han Fei makes the Taoist argument against the ultimate veracity of complex moral systems, on the basis of no such complexity existing, for example, in congenial family relations.[41] As in Taoism, the Book of Lord Shang often considers private morality useless or even harmful, though for Shang because it serves to promote people for reasons other than merit, and as in Mohism for the multiplicity of moral opinion. The book instead prescribes that a legal code settle moral disputes, recommending that it be clearly written and public[42] (criticized by the Zhuangzhi as uninspiring). As in Taoism, much of Shang Yang's philosophy grants a central place to the discussion of "essentials" or "fundamentals", but with a focus on the state, and like Shen Buhai does not discuss Taoism or its metaphyiscs.

Much of the syncreticism is just a case of using the same language. Confucianism also uses some of the same language as Taoism. Besides the subtle ideological differences in his Taoistic expositions, realists like Han Fei may not have believed at all in Taoism, just using Taoistic rhetoric. Ultimately, though some realists may even be said to have grounded upon the emerging philosophy of Taoism, by and large their concerns may be called purely administrative if not areligious.[43] Taoist documents like the Zhuangzi criticize administrative methodology as not resting in "prefect natural action", and therefore not succeeding. Legalist law is also considered more in the context of fidelity to the monarch than any moral question of the Confucians; indeed, Shen Buhai does not mention virtue.[44]

Legalist cosmology[edit]

The legitimization of regimes through cosmological narrative is very old, if not universal; in the European Middle Ages, Thoma Aquinas described a "Great Chain of Being" that can be compared with the feudal order, stating that nature itself depended upon a "labyrinth of obligations."[45] Much of Han Fei's writing uses Taoist and naturalistic phraseology. In one instance Fei espouses Taoist utopia as the product of Legalism.[46]

The Chinese Realist's use of Taoism, metaphysics and utopias are generally only considered to have been supplementary to those of immediate practicality, though that is not to say that it does not lend itself to any narrative. Reformers departing from traditional morality often fell back on cosmology to buffer their arguments.[22] Both Taoism and Legalism drew upon older beliefs in the origins of the world in simplicity in the creative power of Heaven, as in the Wu Xing and Iching.[44] For Chinese philosophers in general, the Warring States period was considered one of decline caused by disunity and a decline in authority. Through application, the Legalists suggest an ultimate end to the problems targeted by laws and institutions, if not the institutions themselves.

The Book of Lord Shang explicitely relates order with simplicity and disorder with complexity, teaching that in an orderly state, "laws abolish laws" and "words abolish words".[47] Stillness being attained and the creative purpose of law being accomplished, it goes unused. Thus, together with the tradition of sage-kings, the book regards law as an intermediary tool in a cosmological narrative used by the ruler for the attainment of supremacy (restoration of the mandate) and rectification of the world, not civil progress or reform as such. Han Fei promotes an even more explicitly Taoist vision. Though on the periphery and using more rarefied methods, Qin regarded itself as a rehabilitater of Chinese civilization, referring to its coming era as the "water" phase of Wu Xing to Zhou's "fire" phase.[48]

Rule by Law[edit]

Western sinoligists often contrast the west's "rule of law", based on the restriction of ministerial power, with the early Shang Yang Legalists "rule by law", which developed out of the codification of general royal promulgations backed up by force in-order to achieve social order.[49] Being more basically oriented toward crime and fines, the later Han Fei criticized Yang's method for its lack of ministerial technique, which Fei's legal philosophy based upon the Han state's Shen Buhai. Han Fei's philosophy considers distant exercises of power outside the law, if profitable, to be rewardable innovations.

Shang Yang, Qin and Legalism proper[edit]

  • Fa (; p 'fǎ', lit. 'law'):

The ancients who completed the principal features of legalism... never burdened their mind with avarice nor did they ever burden themselves with selfishness, but they entrusted law and tact with the settlement of order and the suppression of chaos, depended upon reward and punishment for praising the right and blaming the wrong, assigned all measures of lightness and heaviness to yard and weight.[50]

Following an order inviting capable men to the court in-order to recover territory to the east and restore the heritage of Duke Mu of Qin,[51] the Qin king established Shang Yang as a reformer. Contemporary of other Warring States reformers, Yang imported and developed the innovations of other states, including the already developed legal code of Wu Qi of Chu, establishing a more draconian legal system in-order to facilitate agriculture.

Following the Book's doctrine of reward and penalty, people in Qin were granted rights according to their rank. This was reform oriented; Yang's legal code allowed the common people to gain in rank if they performed well. For example, soldiers would gain in rank according to the number of heads the soldiers collected (a practice abandoned as Qin became more successful). A soldier may even gain noble rank. A farmer could gain rank according to his grain (moreso in peacetime than wartime). Lü Buwei, originally a merchant, was able to become Chancellor of Qin, something that would never occur in the other six states which generally only gave higher posts to the well-connected.

To encourage the development uncultivated lands, Qin being underpopulated, the book written after his policies proscribes the temporary abolition of taxes on new immigrants and the determination of land qualities for taxation, stating that even the lazy, the merchants, the criminals and innkeepers would turn farmers under the right conditions. Yang is said to have instituted generally the ability to buy and sell land. Though land could be traded, this did not, at that time, interfere with the system of title grants used in the government's merit-oriented feudal officialdom. These could be sold and money or grain used to purchase ranks, and thus posts and responsibilities. But the maintenance of higher aristocratic ranks and titles required military service if none other significant enough was performed.

A basic tenet of the Book of Lord Shang being that law be made public, well-known and easy to understand, it emphasized "letting the law teach". The law was intended to run the state, make actions taken systematically predictable, and develop the resources of the state through penalty and reward. To avoid conspiracy, Legalists like Shang Yang recommended the administration and the realm generally be divided into mutually observant realms of differing interests. Yang held that if the law is successfully enforced, even a weak ruler will be strong. To provide this benefit to the state, the doctrine of strict legal application in the Book of Lord Shang stresses that people under the ruler be made equal under the law, if not immediately than ultimately if for no other reason than to enhance the authority of the sovereign.

Accepting Yang's emphasis on the standardization of weights and measures, Qin rulers divided families into smaller households, and adopted, in varying degrees, the practice that no individual in the state should be above the law (and ensuring harsh penalties for all cases of dissent). In theory, if penalties were heavy and the law was equally and impartially applied, neither the weak nor the powerful would be able to escape consequences, and by emphasizing performance over sophistry hoped to eliminate bureaucratic corruption and intrigues. Qin Dynasty legal codes required officials to correctly calculate the exact amount of labour expected of all artisans;[52] if the artisan was ordered to perform either too much work or too little work, the official would be held accountable. In theory, ministers and other officials were prevented from performing some other official's duties and were punished if they attempted to blind the ruler with words or failed to warn the ruler of danger.

Fall[edit]

There is no ruler of men who can give order to his people for all time, nor is there a country in the world that has not known disorder. Raising virtuous and capable men is the cause of bringing order into the world, but it is also the cause of order becoming disorder.

Shang Jun Shu "Attention to Law"[37]

Whether a return to the aristocratic distribution of the Zhou would have worked or not, the first Emperor believed it to be the cause of disintegration, and opted to maintain the unitarian, bureaucratic legal application over its area. The Han Dynasty did just such a redistribution, gradually parring it away through realpolitik. Though lending itself to the development of a smaller state, incidences resultant of the rigid impersonality of the legal system mounted and resistance to it began soon after the Emperor's death. Chu openly flouted the laws. No alternative or admixture was secured before the fall of the dynasty.[53]

The later Sima Tan, though hailing "fa jia" for “honoring rulers and derogating subjects, and clearly distinguishing offices so that no one can overstep [his responsibilities]”, criticized the Legalist approach as “a one-time policy that could not be constantly applied”.[54]

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

It is impossible to compare them. Man, not eating for ten days, would die, and, wearing no clothes in the midst of great cold, would also die. As to which is more urgently needful to man, clothing or eating, it goes without saying that neither can be dispensed with, for both are means to nourish life. Now Shên Pu-hai spoke about the need of tact and Kung-sun Yang insisted on the use of law. Tact is the means whereby to create posts according to responsibilities, hold actual services accountable according to official titles, exercise the power over life and death, and examine the officials' abilities. It is what the lord of men has in his grip. Law includes mandates and ordinances that are manifest in the official bureaus, penalties that are definite in the mind of the people, rewards that are due to the careful observers of laws, and punishments that are inflicted on the offenders against orders. It is what the subjects and ministers take as model. If the ruler is tactless, delusion will come to the superior; if the subjects and ministers are lawless, disorder will appear among the inferiors. Thus, neither can be dispensed with: both are implements of emperors and kings.[55]

The Book of Lord Shang itself did not hold the principle of law as a suitable base for a large state, describing its application as having a shrinking effect. Though a definitive reformer, Yang was ultimately an absolutist and considered law one tool among others. Never envisioning the extent to which later reformers would attempt to make it a permanent feature if not revolutionary project, the book holds that matters benefiting from an overarching presence ought already be dealt with in the course of the state's development, attaining, as Taoism would say, a natural mode. Yang's book suggested post-conquest enfeoffment (as necessary), mutual responsibility, and decentralization down to the village level referring back to legal authority.

But the Qin government's base rested on the innovation of law as overseen by central officials, and though reiterating the other methods the later Han Fei's philosophy nonetheless further magnifies the importance of law. According to the Han's Grand Historian Sima Qian (c. 145–86 BCE), the First Qin Emperor hid himself from the rest of the world (perhaps due to a desire to attain immortality) and thus maintained a low profile. But he did not follow all of the Legalists’ advice on the role of the ruler, continuing this line to the point of not even interacting with his own ministers. leaving this to the Prime Minister, Li Si. Li subsequently altered the royal succession after the Emperor's death to enthrone an incompetent. In a certain sense following one of the philosophical premises for the purpose of law, this heir tried to cause the system to run itself by punishing bad news.

Legacy and continuity[edit]

In their time, Qin and the tendency toward legalism were demonized by Confucian scholars for "dangerously lacking in Confucian scholars;"[56] later, because of actions by the Emperor Qin Shi Huangdi and conflict with some probably non-Confucian scholars;[57][58][59] and later again by then-endorsed post-Qin Confucian scholars for the conflict of legal emphasis with the then-Confucian interests regarding social norms, organic classism and ritual regarded as extraneous by legalistic philosophy. Taoist texts like the Zhuangzhi had also criticized such things as the monarchist-legalist administrative settling of morality as "a mantis trying to restrain a wagon-wheel."

With the fall of Qin Legalism ceased to be an independent "school" of thought. But realist methodology had compounded into necessity, and continued to influence or determine Chinese administration thereafter, though often masked by Confucianism.[60][61][62] Both ancient and modern observers of Chinese politics have argued that Legalism still plays a major role in government. Post-Qin historians marginalized realist philosophy, giving it a superficial categorization to distinguish it from the also sometimes maligned Taoism and resigning it to the past, while Chinese politics demonized but overlooked the use of both in the benign administrative developments needed for the government of a unified China. Political Taoism made a temporary return in the Tang court alongside Buddhism.

Qin Hui memorably glossed the reality of imperial China as "Confucian on the outside, but Legalist within" (, p Rú biǎo, Fǎ lǐ).[63] In the decay of the Han, reformers talked of a return to more legalistic methods, with Liu Bei modernly described, like the Chinese state, as inwardly Legalist while Confucian in appearance. Confucian values, and, During the Sui and Tang dynasty, Buddhist ideas, were used to sugarcoat the external face of the Imperial system's Legalist method. The Sui dynasty's policies during its efforts to reunify China might called "legalistic" and resemble the Qin in some ways, carrying out mass-labour projects in agriculture, said tendency being a likely inspiration for latter attempts at the same by Maoism. Like the Han with the Qin, the Tang government used the government structure left behind by the Sui dynasty, albeit with much reduced punishments.

Often high ranking ministers,[64] and for example Han period texts commonly referred to as Huang-Lao, such as the Huainanzi,[65] use some of the same terms and emphasized some of the same methods, though with more Taoist rhetoric. Another early famous Han "Huang-Lao" text, the Huangdi Neijing, makes the usual realist's reference to calculations within its first few pages.

Modern revival[edit]

Those termed as Legalists are referenced explicitly even in the modern era,[66] with Legalism and Confucianism having been a subject for contrast, debate and discussion by Chinese Communists. The term is now sometimes used by modern scholars to describe policy later than that of the Qin dynasty, such as that of the Han, Wei, Shu Han, or Sui Dynasties,[67][68][69] even while they themselves may not have self-identified with the term. While it was primarily used by old Chinese historians as a categorizer for a "school" of Qin Warring States period and Spring and Autumn philosphy, the use of the term as a descriptor has significantly broadened, and is not considered so taboo.

Earlier Communist ideology criticized Confucianism, detaching Confucian ideology from the state. 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 articulate institutional supports and continue the rehabilitaiton of Legalist philosophy and technique into the mainstream of Chinese administration alongside Confucianism, both of which Xi sees as relevant. Scholars say the new laws provide a firmer legal framework for civil society and foreign NGOs. By comparison, contemporary India, also faced with issues regarding NGOs, simply revoked the licenses of 8975 non-governmental organizations for accounting violations as being harmful to the economy.[70] Xi vowed to "overhaul the economy, promote social equality, and build a fairer, cleaner legal system."[71][72]

On February 25, China's state media began the widespread rollout of President Xi Jinping's new ideological directive, the "Four Comprehensives."

   Comprehensively build a moderately prosperous society (全面建成小康社会)
   Comprehensively deepen reform (全面深化改革)
   Comprehensively govern the nation according to law (全面依法治国)
   Comprehensively strictly govern the Party (全面从严治党)[74]

"According to a previous report by the International Business Times, this means divesting total, overarching disciplinary power from the central government, and allowing local courts to be supervised by local officials, establishing semi-independent courts to promote judicial independence and reduce interference by local party officials."[75]

References[edit]

  1. ^ http://www.sjsu.edu/faculty/watkins/legalism.htm
  2. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration, Journal of Chinese Philosophy Volume 1.
  3. ^ http://www2.iath.virginia.edu/saxon/servlet/SaxonServlet?source=xwomen/texts/hanfei.xml&style=xwomen/xsl/dynaxml.xsl&chunk.id=d2.7&toc.depth=1&toc.id=0&doc.lang=bilingual
  4. ^ Pines, Yuri (2012). "2013: Submerged by Absolute Power: The Ruler's Predicament in the Han Feizi". In Goldin, Paul R. Dao Companion to the Philosophy of Han Fei. Berlin: Springer. 
  5. ^ http://www.mdbg.net/chindict/chindict.php?page=worddict&wdrst=0&wdqb=%E5%8B%A2
  6. ^ a b http://plato.stanford.edu/entries/chinese-legalism/
  7. ^ http://ctext.org/shang-jun-shu/interdicts-and-encouragements
  8. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration, Journal of Chinese Philosophy Volume 1.
  9. ^ http://ctext.org/shang-jun-shu/cultivation-of-the-right-standard
  10. ^ http://www.philosophy.hku.hk/ch/Lord%20Shang.htm
  11. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration, Journal of Chinese Philosophy Volume 1.
  12. ^ Van der Sprenkel
  13. ^ a b c Origins of Statecraft in China
  14. ^ http://www.sjsu.edu/faculty/watkins/legalism.htm
  15. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration, Journal of Chinese Philosophy Volume 1.
  16. ^ "Han Fei-tzu (d. 233 BCE): Legalist Views on Good Government". 
  17. ^ http://acc6.its.brooklyn.cuny.edu/~phalsall/texts/hanfei.html
  18. ^ Early Chinese Empires
  19. ^ Han Fei Zi "Chapter V. The Tao of the Sovereign"
  20. ^ "Persistent Misconceptions about Chinese Legalism"
  21. ^ a b c Rickett, Guanzi
  22. ^ a b c d e f Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration, Journal of Chinese Philosophy Volume 1
  23. ^ http://www.duhaime.org/LawMuseum/LawArticle-363/China--A-Legal-History.aspx
  24. ^ Legge - The Chinese Classics
  25. ^ http://www.commonwealthprotection.org/AncientChinaLaw.pdf
  26. ^ Origins of Statecraft in China, Creel
  27. ^ Mark Edward Lewis, Writing and Authority in Early China
  28. ^ Ricket, Guanzi
  29. ^ http://www.fsmitha.com/h1/china01b.htm
  30. ^ Walker, Robert Louis. The Multi-state System of Ancient China. 1953.
  31. ^ http://www.commonwealthprotection.org/AncientChinaLaw.pdf
  32. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration, Journal of Chinese Philosophy Volume 1.
  33. ^ Han Fei Zi "Chapter XXX. Inner Congeries of Sayings, The Upper Series: Seven Tacts"
  34. ^ "Shang Jun Shu : Interdicts and Encouragements". Chinese Text Project. Retrieved 15 April 2015. 
  35. ^ http://www2.iath.virginia.edu/saxon/servlet/SaxonServlet?source=xwomen/texts/hanfei.xml&style=xwomen/xsl/dynaxml.xsl&chunk.id=d2.4&toc.depth=1&toc.id=0&doc.lang=bilingual
  36. ^ http://ctext.org/shang-jun-shu/interdicts-and-encouragements
  37. ^ a b Shang Jun Shu. "慎法 - Attention to Law". Chinese Text Project. Translated by J.J.L. Duyvendak. Retrieved July 11, 2015. 
  38. ^ http://www.iun.edu/~hisdcl/h425/legalists2.htm
  39. ^ http://english.eastday.com/e/zx/userobject1ai4046204.html
  40. ^ http://www.sjsu.edu/faculty/watkins/legalism.htm
  41. ^ "Chapter XX. Commentaries on Lao Tzŭ's Teachings"
  42. ^ "Shang Jun Shu : Cultivation of the Right Standard - Chinese Text Project". Chinese Text Project. Retrieved 15 April 2015. 
  43. ^ Herrlee G. Creel, Shen Pu-Hai: A Secular Philosopher of Administration
  44. ^ a b Creel, Shen Pu Hai, Journal of Chinese Philosophy Volume 1
  45. ^ Zero Marginal Cost Society, which I just happened to be reading
  46. ^ "Chapter XXIX. The Principal Features of Legalism"
  47. ^ "Shang Jun Shu : Making Orders Strict - Chinese Text Project". Chinese Text Project. Retrieved 15 April 2015. 
  48. ^ Early Chinese Empires
  49. ^ http://www.philosophy.hku.hk/ch/Substance-Function.htm
  50. ^ "XWomen CONTENT". virginia.edu. Retrieved 15 April 2015. 
  51. ^ J. J.-L. DUYVENDAK
  52. ^ Robin Yates
  53. ^ http://www.chinese.cn/people/en/article/2010-03/29/content_118248.htm
  54. ^ http://plato.stanford.edu/entries/chinese-legalism/(Shiji 130: 3289–3291; for translations cf. Smith 2003: 141; Goldin 2011: 89).
  55. ^ Deciding Between Two Legalistic Doctrines
  56. ^ John Knoblock Xunzi p.29 ("Qiangguo," 16.6).
  57. ^ Goldin 2005 p.151
  58. ^ Nylan 2001 p.29-30
  59. ^ Kern 2010 111-112
  60. ^ Hooker, Richard. "Legalism". 
  61. ^ "The Han Dynasty" (PDF). Indiana University. Indiana University. 
  62. ^ Watkins, Thayer. "Legalism and the Legalists of Ancient China". applet-magic.com. San José State University. 
  63. ^ Qin Hui. 《传统十论》 [Ten Expositions on Tradition]. 2004. (Chinese) Op. cit. Australian Centre on China and the World. The China Story "Qin Hui 秦晖". Accessed 26 September 2013.
  64. ^ Mark Edward Lewis, The Early Chinese Empires
  65. ^ Ulrich Theobald (2010-07-24). "Chinese Literature - Huainanzi 淮南子". www.chinaknowledge.de. Retrieved 2014-08-04. 
  66. ^ "Mao Tse-Tung on Legalism and Lord Shang: How China's ancient past influenced its future". 
  67. ^ "Legalism, Qin Empire and Han Dynasty". 
  68. ^ "Decline of Legalism". cultural-china.com. Retrieved 15 April 2015. 
  69. ^ "The Three Kingdoms and Western Jin, Rafe de Crespigny Publications, Faculty of Asian Studies, ANU". anu.edu.au. Retrieved 15 April 2015. 
  70. ^ http://journal-neo.org/2015/06/02/india-fighting-against-foreign-ngos/
  71. ^ Edward Wong (May 29, 2015). "Chinese Security Laws Elevate the Party and Stifle Dissent. Mao Would Approve.". The New York Times. Retrieved May 30, 2015. A party conference in October laid the foundation for the party’s use of the law to justify and reinforce its rule. The conference called for policies promoting “the Socialist rule of law with Chinese characteristics.” 
  72. ^ Chris Buckley (October 11, 2014). "Leader Taps Into Chinese Classics in Seeking to Cement Power". The New York Times. Retrieved May 30, 2015. ...“Legalist” thinkers who more than 23 centuries ago argued that people should submit to clean, uncompromising order maintained by a strong ruler... 
  73. ^ Cite error: The named reference http:.2F.2Fwww.scmp.com.2Fnews.2Fchina.2Farticle.2F1646575.2Fxi-jinping-faces-challenge-governing-through-two-opposing-schools-thought.3Fpage.3Dall was invoked but never defined (see the help page).
  74. ^ http://www.huffingtonpost.com/ryan-mitchell/decoding-xi-jinpings-four_b_6757744.html
  75. ^ http://www.ibtimes.com/china-unveils-xi-jinpings-four-comprehensives-governance-plan-what-it-means-chinas-1828506

Sources[edit]

  • Creel, H.G. “The Totalitarianism of the Legalists.” Chinese Thought from Confucius to Mao Tsê-tung. Chicago: The University of Chicago Press, 1953.
  • Duyvendak, J.J.L., trans. The Book of Lord Shang: A Classic of the Chinese School of Law. London: Probsthain, 1928.
  • Graham, A.C., Disputers of the TAO: Philosophical Argument in Ancient China (Open Court 1993). ISBN 0-8126-9087-7
  • Pu-hai, Shen. “Appendix C: The Shen Pu-hai Fragments.” Shen Pu-hai: A Chinese Political Philosopher of the Fourth Century B.C. Translated by Herrlee G. Creel. Chicago: The University of Chicago Press, 1974.
  • Qian, Sima. Records of the Grand Historian, Qin Dynasty. Translated by Burton Watson. New York: Columbia University Press, 1993.
  • Schwartz, Benjamin I. The World of Thought in Ancient China. Cambridge, MA: The Belknap Press of Harvard University Press, 1985.
  • Watson, Burton, trans. Han Fei Tzu: Basic Writings. New York: Columbia University Press, 1964.
  • Xinzhong, Yao, Introduction to Confucianism (2000). ISBN 978-0-521-64312-2
  • Potter, Pittman, From Leninist Discipline to Socialist Legalism : Peng Zhen on Law and Political Authority in the PRC2 (2003). ISBN 978-0-8047-4500-0

External links[edit]