Legalism (Chinese philosophy)

Legalism
Statue of the legalist Shang Yang
Chinese	法家
Literal meaning	School of law
Transcriptions Standard Mandarin Hanyu Pinyin Fǎjiā Wade–Giles Fa-chia

Dating back to early China, Legalism (Chinese: 法家; pinyin: fă jiā) refers to what the west would term as the Realpolitikal aspect of administrative Chinese Philosophy, whose later reformers innovated a rule by law. Building upon the political methodology of the decaying Zhou dynasty, officials began reforms during the Spring and Autumn Period in order to support the authority, states, and militaries of the kings. Reform soon accelerated with the Warring States period, with the Qin state developing the beginnings of a legal code into an expansive if undiscriminating institution, generally defining the trend.

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

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. In the philosophy of Shen Dao and later philosophers, the Sovereign's forceful establishment of order and restraining hold on the state generates the stability necessary for any rule at all. The ruler exists to monopolize authority in-order to prevent it's abuse by feudal magnates. In the Book of Lord Shang, a strong inherited position supports even an ineffectual ruler, while a competent ruler without position effects nothing.
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 threatening or force, law, reward or penalty, all of which may be unsuitable for the exercise of one man, depending on the times. 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.
3. Fa (Chinese: 法; pinyin: fǎ; literally "law or principle"): Fa Originally has a broader meaning of standards; in the later Legalism and as far back as the Zhou, these would be the standards of the ruler. 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. 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.

Introduction

The Chinese instituted a vast, complex and highly centralized bureaucratic state hundreds of years before Europe's Christian era. Chinese administrative organization 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 exaimination. The Chinese state was derived from what may be termed as "Chinese administrative philosophy". Post-Zhou this included Confucianism, and an often masked and unspoken Realism or "Legalism", which both played important roles and advocated a unified China. Consisting of methodologies for the ruler, in the west "Fa-Jia" reformers have often been compared with Machiavelli and thus have been termed as Chinese Realist, or in China as Legalist(fa-jia) in reference to their later developments.

The trend toward greater efficiency in state and economic affairs in China was long in development, and the later Legalist reformers of the Qin state drew on earlier reforms of the Han, Chu and Wei states. Early Zhou dynasty documents, not generally referenced as Legalist, also emphasized the use of reward and penalty characteristically associated with Lord Shang and Qin of the later, bureaucratizing Warring States Period. The long-lasting Zhou dynasty 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 realists.

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. Warring States Period realists or "legalists", like the "outstandingly important" "foundational" Shen Buhai make little to no reference to divine authority or ethics.

Shen did use Taoist terms like Tao (which Confucianism also uses) and Wu-Wei, but he uses these differently and was concerned neither with religion nor metaphysics. Shen was concerned almost exclusively with administration, and may have been 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. Creel writes: "If one wishes to exaggerate, it would no doubt be possible to translate Shen'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".

Terminology

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. Like them it continued to influence Chinese politics, but the term itself is applied posthumously. 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 would account this as being useless in teaching agriculture. Legalist rhetoric was intended for the ruler, not literary redistribution.

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. Sinologists like Creel, tracing the base for later reform as far back as the early Zhou, prefer "Realist"; the legal aspect of administration came late to the era, making it an odd term for important foundational realists of similar style whose reforms had yet to broach or even mention the establishment of any comprehensive legal system.

Pre-Legal Realists in "Position and Tact"

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

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 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 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. The Book of Lord Shang

Lesser but nonetheless schismatic hostility between the Chinese states occurred in the Spring and Autumn period, and with the decay of the Zhou line many disenfranchised or opportunist aristocrats were attracted by reform-oriented rulers, often in other states. Early Spring and Autumn reformers did not have always have much of a standardized or comprehensive code to rely upon, instead emphasizing the importance of the "five classes", or just the less systematized orders of the Sovereign (who became increasingly important), and did not have always have much of a standardized or comprehensive code to rely upon. The sprawling feudal realm of the Zhou was nonetheless solidified into distinct entities. By the time of the Warring States period the earlier decline in centralization was on the reverse. With the developing importance of the officialdom in Chinese history the interpersonal role of the monarch with the feudal order was reframed toward management of the emerging class.

Warring States realists like Shen Dao and Legalist Han Fei wrote that the ruler should hold the powers of reward and penalty; if anyone freely exercised one or the other, they would usurp 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. Shen Dao emphasized that the head of state was endowed with shi, the "mystery of authority". The emperor’s very figure brought legitimacy. But it is the position of rulers that is powerful, not the rulers themselves. While in Shen Dao's case much this still meant military despotism relating with the feudal aristocracy, it would soon translate into administrative analysis of the trends, context, and facts reported by them.

Around the same time as Shen Dao, Shen Buhai – a minister from the state of Han sometimes called the "founder" of "Legalism" (though he did not use law), formalized the concept of shu, the bureaucratic model of administration. Shen drew on the old Zhou ideation of the sovereign's role as an interpersonal surveyor of realm performance, focusing on the emerging officialdom instead of the old aristocracy. For Shen Buhai, the primary good of the ruler is "technique". In his program, 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 later legalists like Han Fei recommended be systematized.

Advising that skilful rulers hide their true intentions by feigning nonchalance and identifying their position with the words of inferiors, and later by the use of law instead of acting directly, Legalism ultimately reduced the importance of charisma, and thus the burden on the ruler. To ensure that all of his words were revered, a wise ruler should keep a low profile; theoretically, by cloaking both his desires and his will, rulers could force reliance upon their dictates and thereby check sycophancy. If no one can fathom the ruler's motivations, no one can know which behavior might help them get ahead other than following the law and trying to perform meritoriously.

The technique emphasized by the later Han Fei (the Legalistic scholar contemporary of and most admired by the First Qin Emperor, Qin Shi Huangdi), also emphasized a Taoistic withdrawal from direct control of the state and recommended the wise ruler indulge the advice of ministers, extend courtesy to those beneath them and not be avaricious. Rather then rely too much on the judgement of the ruler regarding state projects, poor planning would simply be discouraged by heavy fines. Stressing that ministers and other officials too often abused their positions and sought favours from foreign powers, he urged rulers to control Ministers by a combination of favours and penalties to ensure that ministers' accomplishments were neither greater than nor inferior to their undertaking.

Legalist's Background

Far from being discrete, Realist writings and reforms were very much syncretic, drawing on intellectual activity like that of the other three "schools". Earlier Spring and Autumn reformers had often related with moralist systemology, but later Realists sometimes rejected or even vilified Confucianism's private morality (or Mohism's watchful justice of ghosts). However, there were still exchanges between them. The hierarchical methods of Mohism and Realism related, both being antithetical to tradition, having argued the importance of authority outside the family. Ministers Li Si and Han Fei Zi were taught by heterodox Confucian Xunzi who, rejecting the innate human goodness or morality of Mencius, emphasized the importance of education and ritual, which the Legalists re-simplified into Fa.

Confucianism emphasized ritual and considers morality in a context of cultivating "virtue" quite apart from law, or otherwise tried to extract it's service thereto. Being melded with the conservative order, Warring State's period Realists, especially Shang Yang Legalism, increasingly flouted traditional and Confucian moralities in-order to advance reform, and related with Taoism in differing degrees as background for their arguments. Like 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, or like Mohism for the multiplicity of moral opinion. The book instead prescribes a legal code (based upon the ruler) settle moral disputes, recommending that it be clearly written and public. 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, but unlike Han Fei, he does not discuss Taoism or it's metaphyiscs.

Yang does not make the Taoist argument argument against stratification. But later Han Fei does make use of the Taoist arguement against the ultimate veracity of complex moral systems, on the basis of no such complexity existing, for example, in congenial family relations. In one instance Fei espouses Taoist utopia as the product of Legalism. But arguments espousing Taoist metaphysics and utopias are generally only considered to have been supplementary to those of immediate practicality. Though sometimes considered foolish or unacceptable to state interests, the later Legalist's actions regarding, for example, patrilineal descent were primarily to render such things utilitarian to the state. The later Han Fei, like Confucianism also emphasized the importance of loyalty, though more in relation to the state and the sovereign than the family.

Reformers departing from traditional morality often fell back on cosmology to buffer their arguments, and both Taoism and Legalism drew upon older beliefs in the origins of the world in simplicity a la the creative power of Heaven, as in the Wu Xing and Iching. The The Book of Lord Shang relates order with simplicity and disorder with complexity, teaching that in an orderly state, "laws abolish laws" and "words abolish words"; stillness being attained and the creative purpose of law being accomplished, it goes unused. Thus, together with the tradition of sage-kings, law is regarded as an intermediary tool initiated and used by the ruler for the attainment of supremacy and rectification of the world. But though on the periphery and using more rarefied methods, Qin still regarded itself as a rehabilitater of Chinese civilization, referring to its coming era as the "water" phase of Wu Xing to Zhou's "fire" phase.

Ultimately, though some Legalists may even be said to have grounded upon the emerging philosophy of Taoism, by and large their concerns may be called purely administrative if not areligious, and are criticized by Taoist documents like the Zhuangzi as not resting in "prefect natural action". 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.

Shang Yang and Legalism Proper

• Fa (法; 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.

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, 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 Han, establishing a more draconian legal system in-order to facilitate agriculture.

Yang is said to have instituted generally the ability to buy and sell land; a system of title grants was used in the government's merit-oriented feudal officialdom, but these could be sold and money or grain used to purchase ranks, and thus posts and responsibilities. The maintenance of higher aristocratic ranks required military service if none other was performed.

To encourage the development uncultivated lands, Qin being underpopulated, the book written after his policies proscribes the temporary abolition of taxes on new immigrants and the determination of land qualities for taxation, stating that even the lazy, the merchants, the criminals and innkeepers would turn farmers under the right conditions.

A basic tenet of the Book of Lord Shang being that law be made public, well-known and easy to understand, it emphasized "letting the law teach". The law was intended to run the state, make actions taken systematically predictable, and develop the resources of the state through penalty and reward. 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; 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.

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

Fall

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

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”.

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.

The Book of Lord Shang itself did not hold the principle of law as a suitable base for a large state, describing it's application as having a shrinking effect. Though a definitive reformer, Yang was ultimately an absolutist and considered law one tool among others. Never envisioned 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 who subsequently altered the royal succession after the Emperor's death to enthrone an incompetent. In a certain sense following one of the philosophical premises for the purpose of law, this heir tried to cause the system to run itself by punishing bad news.

Legacy and Continuity

In their time, Qin and the tendency toward legalism were demonized by Confucian scholars for "dangerously lacking in Confucian scholars;" later, because of actions by the Emperor Qin Shi Huangdi and conflict with some probably non-Confucian scholars; 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. The Taoist Zhuangzhi also criticized 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 trend of thought. But realist methodology had compounded into necessity, and continued to influence or determine Chinese administration thereafter, though often masked by Confucianism. Both ancient and modern observers of Chinese politics have argued that Legalism still plays a major role in government. Post-Qin historians marginalized realist philosophy, giving it a superficial categorization to distinguish it from the also sometimes maligned Taoism and resigning it to the past, while Chinese politics demonized but overlooked the use of both in the benign administrative developments needed for the government of a unified China, though Taoism made a return in the Tang.

Qin Hui memorably glossed the reality of imperial China as "Confucian on the outside, but Legalist within" (儒表法裡, p Rú biǎo, Fǎ lǐ). 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.

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

Modern revival

As Communist ideology plays a less central role in the lives of the masses in the People's Republic of China, leaders of the Communist Party of the People's Republic of China such as Xi Jinping articulate institutional supports and continue the reincorporation of Legalist philosophy and techniques into the mainstream of Chinese administration alongside Confucianism. 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 NGO's, simply revoked the licenses of 8975 non-governmental organizations for accounting violations as being harmful to the economy. Mr. Xi vowed to "overhaul the economy, promote social equality, and build a fairer, cleaner legal system."

Sources

• 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

• "Chinese Legalism: Documentary Materials and Ancient Totalitarianism"
• Legalist texts - Chinese Text Project (Chinese and English)