Legalism (Chinese philosophy)

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Legalism
Statue of the legalist Shang Yang
Chinese法家
Literal meaningSchool of law

Fajia (Chinese: 法家; pinyin: fǎjiā), or the fa school, often translated as Legalism,[1] is a school of mainly Warring States period classical Chinese philosophy, whose ideas contributed greatly to the formation of the bureaucratic Chinese empire, and Daoism, as prominent in the early Han. The later Han takes Guan Zhong as a forefather of the Fajia. Its more Legalistic figures include ministers Li Kui and Shang Yang, and more Daoistic figures Shen Buhai and philosopher Shen Dao, with the late Han Fei drawing on both. It is often characterized in the west along realist lines. The Qin to Tang were more characterized by its tradition.

Though the origins of the Chinese administrative system cannot be traced to any one person, prime minister Shen Buhai may have had more influence than any other for the construction of the merit system, and could be considered its founder. His philosophical successor Han Fei, regarded as their finest writer, wrote the most acclaimed of their texts, the Han Feizi, containing some the earliest commentaries on the Daodejing. Sun Tzu's Art of War recommends Han Fei's concepts of power, technique, inaction, impartiality, punishment and reward.

Concerned largely with administrative and sociopolitical innovation, Shang Yang's reforms transformed the peripheral Qin state into a militarily powerful and strongly centralized kingdom, mobilizing the Qin to ultimate conquest of the other states of China in 221 BCE. With an administrative influence for the Qin dynasty, he had a formative influence for Chinese law. Succeeding emperors and reformers often followed the templates set by Han Fei, Shen Buhai and Shang Yang.

The Han Feizi's Lineage[edit]

Although propelling the Qin to power, central China likely did not know the remote Qin state's Shang Yang until at least the eve of imperial unification, with Han Fei his first reference outside the Qin state's own Book of Lord Shang. Knowing of Shen Buhai and Shen Dao, even the late Xun Kuang would not seem to know Shang Yang, despite traditional comparisons.[2][3] While the Warring States period contains figures that can otherwise be partly called Legalistic,[4] it is only possible to trace the conceptual origins of what would later be called the fa-school to the first connection between Shang Yang and Shen Buhai, in chapter 43 of the Han Feizi. Although having their own influences, it has been argued as essentially attributable for their later combination under the school as Legalists.[2][5]

Set against a backdrop of the late Warring States period's Hann state under the threat of Qin, Han Fei considered law necessary, taking Shang Yang as representative, as well as administrative Technique, representative of his own state's Shen Buhai.[6] Although exemplary in early bureaucracy, according to Han Fei, Shen Buhai had disorganized law in the newly formed Hann state,[7] and in contrast to the others, appears to have opposed punishment.[8] Advocating impartiality and wu wei as reduced activity by the ruler, as later associated with Daoism, Shen Buhai was earlier said to be a Daoist. While at least much of his influences were likely earlier, the Han Feizi's Chapter 5 otherwise quotes from his work alongside that of Laozi.[9]

With differences to later Daoism, the politically oriented Shen Buhai, Shen Dao, and Han Fei would all be associated with early Daoism, with the eclectic Han Feizi a Daoist-influenced text. The development of ideas like fa (laws,methods) develop out of the Mohists.[10] In a struggle against regulation of the semi-feudal bureaucracy, and between Confucianism and Daoism, a confused revulsion against the Qin dynasty and old harsh laws of Shang Yang developed over the course of the Han dynasty.[11] Han Fei, Shen Buhai and Shang Yang would be associated together as a source for harsh Qin dynasty practices.[12]

A figure from the Jixia Academy in the Han Feizi's chapter 40, the Mohists and Shen Dao are claimed by the Outer Zhuangzi as predecessor to Zhuang Zhou and Laozi,[13] and bares resemblance to the Daoism of the Zhuangzi.[14] Advising that administrative machinery be used to impartially determine rewards and punishments, Shen Dao never suggests kinds of punishments,[15][16] otherwise advocating that the realm be literally modeled off the natural world.[17] Together with Shen Buhai and Han Fei, he bares resemblance to the recovered eclectic, early Boshu text in the Mawangdui Silk Texts, with daoistic ideas comparable more to Natural law.[18] Although early relevant, Sinologist Herrlee G. Creel found no following for him comparable to Shang Yang or Shen Buhai by the Han dynasty; it would instead involve tracing the influences of the Zhuangzi.[19]

Han Dynasty brief[edit]

In the early Han dynasty, some decades after the fall of the Qin dynasty, Sima Tan's (165–110 bce) and Sima Qian (145–c.86 BCE) Records invented the abstract categories or schools of Yin-Yang, Fajia, Mingjia and Daojia. Together with Mohism and Confucianism, he compares their purported strengths and weaknesses in promotion of what he dubs the Daojia or Dao-school, as a synthetic term which comes to mean Daoism a century after his death. He does not name anyone under them.[20] Placing the biographies of Han Fei and Shen Buhai alongside Laozi and Zhuangzi, Sima Qian simply gives Shang Yang his own chapter. Along with several founding Han figures, he claims Han Fei, Shen Buhai and Shen Dao as having studied his same Huang-Lao ideology, or "Yellow Emperor and Laozi Daoism". The favored ideology of the early Han, and potentially Qin ruling classes in earlier form, it marks the beginnings of religious Daoism.[21][22] Sima Qian would assert the Qin dynasty as implementing the polices of Han Fei under the Second Emperor.[23]

Against a background of Han dynasty political upheaval, developing mythos and posthumous associations surrounding them and the Qin dynasty, Han Fei, Shen Buhai and Shang Yang, with prominent influence evident in the early Han, would be artificially separated out by calling them Fajia Legalists.[24][25] Imperial archivists Liu Xiang (77–6BCE) and Liu Xin (c.46bce–23ce) placed the Fajia's figures a century after Sima Qian's death. Inventing fictional ancient departments for the schools (a potential attempt at historiography), with the Fajia that of the department of prisons, it was used as a category in the Han imperial library. It becomes a category of texts in the Han dynasty's own Book of Han (111ce), categorizing them as Fajia Legalists on the Imperial authority of the later Han dynasty state.[26]

Undoubtedly associating Shang Yang primarily with penal law, no received Han text ever attempted to individually argue or obfuscate Shen Buhai as a penal figure that belongs together with Shang Yang. Contrasting with Confucius and the Zhou dynasty, Dong Zhongshu asserts the Qin as otherwise failing to punish criminals, simply glossing Shen Buhai together with Shang Yang and associating together them with the Qin dynasty again as purportedly implementing the ideas of Han Fei.[27][28] His type of argument is far from unique in his era; Han Fei employs the same type of argument when he combines the figures, as does the Huainanzi contrasting them with it's own ideas, and Sima Qian himself when he coins the term. Sima Qian's categories were simply more fortuitous, popular and enduring than those of Liu An or Xun Kuang.[29][30]

Changing with the times[edit]

Taken as a commonality, what the Stanford Encyclopedia of Philosophy terms an evolutionary view of history has generally been associated more particularly with Gongsun Yang and Han Fei. However, sinologist Hansen also once took the Dao of Shen Dao and Han Fei as attempting to aim at what they took to be the '"actual" course of history'. Feng Youlan took the statesmen as fully understanding that needs change with the times and material circumstances. Admitting that people may have been more virtuous anciently, Han Fei believes that new problems require new solutions, with history as a process contrasting with the beliefs of Ancient China.[31] Sima Qian's Daojia "joins with the formless", moves with the seasons, and "responds to the transformation of things".[32]

In what A.C. Graham takes to be a "highly literary fiction", the Book of Lord Shang opens with a debate held by Duke Xiao of Qin, seeking to "consider the changes in the affairs of the age, inquire into the basis for correcting standards, and seek the Way to employ the people." Gongsun attempts to persuade the Duke to change with the times, with the Shangjunshu citing him as saying: "Orderly generations did not [follow] a single way; to benefit the state, one need not imitate antiquity."

Graham compares Han Fei in particular with the Malthusians, as "unique in seeking a historical cause of changing conditions", namely population growth, acknowledging that an underpopulated society only need moral ties. The Guanzi text sees punishment as unnecessary in ancient times with an abundance of resources, making it a question of poverty rather than human nature. Human nature is a Confucian issue. Graham otherwise considers the customs current of the time as having no significance to the statesmen, even if they may be willing to conform the government to them.[33]

Hu Shih took Xun Kuang, Han Fei and Li Si as "champions of the idea of progress through conscious human effort", with Li Si abolishing the feudal system, and unifying the empire, law, language, thought and belief, presenting a memorial to the throne in which he condemns all those who "refused to study the present and believed only in the ancients on whose authority they dared to criticize". With a quotation from Xun Kuang:[34]

You glorify Nature and meditate on her: Why not domesticate and regulate her? You follow Nature and sing her praise: Why not control her course and use it? ... Therefore, I say: To neglect man's effort and speculate about Nature, is to misunderstand the facts of the universe.

In contrast to Xun Kuang as the classically purported teacher of Han Fei and Li Si, Han Fei does not believe that a tendency to disorder demonstrates that people are evil or unruly.[35]

As a counterpoint, Han Fei and Shen Dao do still employ argumentative reference to 'sage kings'; Han Fei claims the distinction between the ruler's interests and private interests as said to date back to Cangjie, while government by Fa (standards) is said to date back to time immemorial. Han Fei considers the demarcation between public and private a "key element" in the "enlightened governance" of the purported former kings.[36]

Fa standards[edit]

Containing the first direct references to the Book of Lord Shang,[2] the first connection between Shang Yang and Shen Buhai can be seen in the Han Feizi,[37] contrasting the two in chapter 43. This chapter is almost undoubtedly the original the ancient Chinese would have read from when they associated Shen Buhai together with Shang Yang. Han Fei takes Shen Buhai as focused on the use of fa (standards) in the administration, which he terms (shu) administrative Method or Technique, concerned with holding power, selecting ministers, and overseeing performance. He presents Shang Yang as focused on fa "standards" as including law. Han Fei considered both necessary.[6][38]

Although Sima Qian's lore also connects the figures with the Qin, he does not gloss Shen Buhai as penal. Only four passages in three Han texts actually associate Shen Buhai together with Shang Yang as penal, being a gloss the Huainanzi contrasting with it's own ideas, a gloss in the debates of the Discourses on Salt and Iron, and the Book of Han's gloss with it's Legalist catalogue. Although Shen Buhai's administrative ideas would be relevant for penal records by the Han dynasty, in contrast to Shang Yang, no Han text discussing him by himself identifies him with penal law, and none pre-Han, only connecting him with control of the bureaucracy. As a modernly reiterated example, he can still be seen in a fifth century work as a figure who advocated administrative technique, supervision and accountability to abolish the punishment of ministers.[39][40]

With the Shangjunshu making more uses of fa as law, Creel took Shang Yang as ancient China's Legalist school. However, Shang Yang's program was broader than law or fa standards. With not all of Shang Yang's reforms indefinitely relevant in any case, Han Fei elementalizes Shang Yang under fa, and the Han dynasty largely connects him only with penal law.[41] Shang Yang's institutional reforms can be considered unprecedented, but the actual perspective of it's current was probably that of trying to create a rich, total state, with a powerful army, all geared for conquest, as expressed in the Book of Lord Shang. Penal law was one component, including a dominating focus on agriculture that was later abandoned together with his harsh punishments. Separately, he was still recognized as a military strategist, and was as much a military reformer in his own time.[42]

Shen Dao makes some use of fa akin to law. He generally uses fa objective standards as a technique to determine reward and punishment in accordance with merit. Xun Kuang criticizes Shen Dao as obsessed with the emulation of models rather than the employment of worthy men, respecting the imitation of models more broadly, but not deciding on one as correct. Shen Dao was more concerned that there be laws than with their particulars. According to Xun Kuang, his laws (or models) lack 'proper foundations', and will not be successful in ordering the state. But he doesn't oppose him just for advocating fa standards, models, or laws.[43]

Administrative focus[edit]

While the term Legalism has still seen some conventional usage in recent years, such as in Adventures in Chinese Realism, academia has otherwise avoided it for reasons which date back to Sinologist Herrlee G. Creel's early work on the subject. As Han Fei presents, while Shang Yang most commonly has fa (standards) as law, Shen Buhai uses fa (standards) in the administration, which Creel translated as method. Han Fei elementalizes him under the term Shu technique, but otherwise quotes him as using fa as standards in administrative method.[15][44]

More broadly, together with Shen Buhai and Shen Dao, Han Fei was still primarily administrative. Han Fei and Shen Dao make some use of fa (standards) as akin to law, and some use of reward and punishment, but generally use fa standards similarly to Shen Buhai: as an administrative technique.[15] Shen Buhai uses fa (standards) to compare official's duties and performances, and Han Fei often uses fa in this sense, with a particular quotation from the Han Feizi as example:[45]

An enlightened ruler employs fa (standards) to pick his men; he does not select them himself. He employs fa to weigh their merit; he does not fathom it himself. Thus ability cannot be obscured nor failure prettified. If those who are [falsely] glorified cannot advance, and likewise those who are maligned cannot be set back, then there will be clear distinctions between lord and subject, and order will be easily [attained]. Thus the ruler can only use fa.

Blaming Shang Yang for too much reliance on law, Han Fei critiques him in much the same way that the Confucians critique law, holding that laws cannot practice themselves. Han Fei says: "Although the laws were rigorously implemented by the officials, the ruler at the apex lacked methods." [46][47]

Han Fei's choice to include law is not accidental, and is at least indirectly intended to benefit the people, insomuch as the state is benefited by way of order. It can mainly be compared to a rule of law inasmuch as it serves purposes beyond simply that of the ruler, generally operating separately from him once established. Han Fei says: "The enlightened ruler governs his officials; he does not govern the people." The ruler cannot jointly govern the people in a large state. Nor can his direct subordinates themselves do it. The ruler wields methods to control officials.[48]

The Book of Lord Shang itself addresses many administrative questions, including an agricultural mobilization, collective responsibility, and statist meritocracy. But it mainly addresses statutes mainly from an administrative standpoint.[49] Turning towards management, Chapter 25 of the Shangjunshu's so-called "Attention to law" advocates "strict reliance on law" (fa) mainly as "norms of promotion and demotion" to judge officials and thwart ministerial cliques, but not yet apparently having absorbed more complex methods of selection and appointment, still fell back on agriculture and war as the standard for promotion.[50]

Daoistic comparative[edit]

Said to have been a Daoist, in contrast to either later Daoism or Huang-Lao, Shen Buhai's Dao or Way refers only to administrative methods (fa). Advocating reduced activity by a completely impartial ruler, Shen Buhai's Wu wei (generally typified as "effortless action") teaches the ruler not to engage in actions that might harm the 'natural order of things', hiding his power and wit. With a more Confucianist usage of wu wei in the sense of leaving duties to ministers, Sinologist Creel argued that he may been earlier than the Daoism of the Daodejing, and not Daoist in that sense. He instead argued that Shen Buhai influenced the Daodejing. It is possible that Sima Qian reverses their formula by placing Daoistic influences first, but would have to be reconsidered with the discovery of the Mawangdui Silk Texts.[51] As taken modernly, Shen Buhai is not strictly required for the development of core Daoist concepts like wu wei, with ancient sources dating back as far as the Classic of Poetry.[52]

The Outer Zhuangzi claims the Mohists and Shen Dao as preceding Zhuang Zhou and Laozi,[53] and Shen Dao can be seen to bare resemblance to the Daoism of the Zhuangzi; hence, Benjamin I. Schwartz termed him a "Daoist", or figure subsumed under the Daojia (Dao-school) as termed by the Han historians, with early Daoist ideas found in eclectics like Han Fei and Xun Kuang.[14] Although less bold in its article, Sinologist Hansen of the Stanford Encyclopedia's Daoism once took Shen Dao as the Beginning of Daoist Theory, or Mature Daoism.[54]

Shen Dao was early remembered for his secondary subject of shi or "situational authority", of which he is spoken in Chapter 40 of the Han Feizi and incorporated into The Art of War, but only uses the term twice in his fragments; taking him as teaching passivity and the elimination of desire, Xun Kuang calls him "beclouded with fa (administrative standards)", prominent in his work as shared with the others.[55][56][57] In contrast to Shang Yang and Shen Buhai, Shen Dao may have been a well known mid-late Warring States period philosopher rather than administrator, with Han Fei at the end of the period.[58] But he is only mentioned in the Shiji in a stub, listing him alongside other scholars of the Jixia Academy, like Xun Kuang and Mencius.[59]

Han Fei and Laozi[edit]

As far can be seen, the treatises of Shen Buhai were purely administrative.[60] Still, their work's early commentators did not themselves distinguish their currents from the Daoists.[61] They did distinguish them from Shang Yang.[62] Han Fei's chapter 43 contrasts Shang Yang and Shen Buhai.[63] In chapter 5, he quotes from the works of Shen Buhai and Laozi.[64] Han Fei does not draw lines between Shen Dao and Laozi; the Book of Han does. He does not profess to be reading the Daodejing differently. As less metaphysical compared with later Daoism, he may instead be reading from some particular older, more political version aimed at his social class.[65]

With a context spanning the Mozi to Huainanzi,[66] but more comparable to the latter Huang-Lao typified works, in opposition to the ministers Han Fei promotes a doctrine of ascetic self-interest to the ruler, teaching wu wei as emptiness and tranquility. Hidden and inactive, he responds to active ministers and affairs rather than acting himself. Han Fei's eclectic Way of the Ruler (Chapter 5) includes the ways of Laozi and Shen Buhai, but emphasizes Shen Buhai, with advice to the ruler to reduce his expressions, desires and traditional wisdom.[67] With hints of naturalism, but leaving out metaphysics, Han Fei often references the Dao in an attempt to demonstrate how the Laozi can make a better ruler, with it's particular chapter as example. Sima Qian does not include the chapter in his short list, so that it can be questioned if he read it; but it would seem the most likely chapter he would have read when he placed the figures.[68]

Placing the biographies of Han Fei and Shen Buhai alongside Laozi and Zhuangzi, Sima Qian would claim Han Fei, Shen Buhai and Shen Dao as having studied his same Huang-Lao ideology, or "Yellow Emperor Daoism", simply giving Shang Yang his own chapter. The favored ideology of the early Han, and potentially Qin ruling classes in earlier form, it marks the beginnings of religious Daoism.[21][22] Sima Qian's Huang-Lao category has generally been taken as imposed backwards.[69] Its claims however likely do not emerge from nowhere, and are not without merit as compared with the Daodejing of the Mawangdui Silk Texts.[70] rather than earlier, it is possible that these may themselves have been written in the early Han, when they would have been more appealing, and the Yellow Emperor is a major figure in one of it's texts. Amongst other strains of thought, it's more metaphysical, but still politically-oriented Boshu text includes contents baring resemblance to Shen Buhai, Shen Dao and Han Fei.[71] Sinologist Hansen promotes the idea that a Huang-Lao cult actually had come to dominate Qin intellectual life.[72]

An interpretation of the Daodejing (Laozi) as simply cynically political would be flawed. Still, together with qigong, it can be viewed as a manual for politics and military strategy. The Laozi of the early Mawangdui Silk Texts, and two of the three earlier Guodian Chu Slips, place political commentaries, or "ruling the state", first. With the Mawangdui found from a member of the political class, they should not be simply assumed as 'originals', and are not necessarily Daoist in the way it would later be understood. Nonetheless, in contrast to all prior conventional ways, the Daodejing emphasizes quietude and lack as wu wei. Together especially with their early Laozi, Shen Buhai, Han Fei, and so-called Huang-Lao Daoism emphasize the political usages and advantages of wu wei as a method of control for survival, social stability, long life, and rule, refraining from action in-order to take advantage of favorable developments in affairs.[73]

The Han Feizi's late Daodejing commentaries are comparable with the Daoism of the Guanzi Neiye,[74] but otherwise utilizes the Laozi more as a theme for methods of rule. Although he has Daoistic conceptions of objective viewpoints, if his version of the daodejing had them, he lacks a conclusive belief in universal moralities or natural laws,[75] sharing with Shang Yang and Shen Dao a view of man as self-interested.[76] Advocating against manipulation of the mechanisms of government, despite an advocacy of passive mindfulness, noninterference, and quiescence, the ability to prescribe and command is still built into Han Fei's contractual method.[77] His current is opposed with later Daoism as a practical state philosophy, not accepting a 'permanent way of statecraft', and applying the practice of wu wei or non-action more to the ruler than anyone else.[78]

Eradicating punishments[edit]

Translator Yuri Pines from the Stanford Encyclopedia of Philosophy takes the Book of Lord Shang's final chapter 26 as reflecting administrative realities of the 'late preimperial and Imperial Qin', essentially congruous with knowledge of the Qin. Although seeking governance more broadly, protecting the people from abuse by ministers becomes more important than punishing the people. Taken as universally beneficial, in an attempt to deliver the "blessed eradication of punishments through punishments", clear laws are promulgated and taught that the people can use against ministers abusing the statutes, punishing them according to the penalties of the state. Han Fei advocates the same, but is more focused on accomplishing it through the administrative power of the ruler.[79]

If at least part of the Han Feizi dates date to its period, the Shangjunshu could have circulated on the eve of unification. The work's adoption by the Han Feizi can give the appearance of a living current for the old harsh punishments of Shang Yang that can be mistakenly imposed backward. Whatever events really transpired, Pine's work in the Stanford Encyclopedia accepts a long status quo within scholarship: The Qin had otherwise abandoned the harsh punishments of Shang Shang before unification. The Book of Lord Shang itself is not a homogeneous ideology, but shifts substantially over its development. As the work's first reference, the Han Feizi recalls its earlier Chapter 4, saying:[2][80]

Gongsun Yang said: "When [the state] implements punishments, inflicts heavy [punishments] on light [offenses]: then light [offenses] will not come, and heavy [crimes] will not arrive. This is called: 'eradicating punishments with punishments'.

Even if the Shangjunshu only passingly suggests that a need for punishment would pass away, and a more moral driven order evolve, the Qin nonetheless did abandon them.[80] As a component of general colonization, the most common heavy punishment was expulsion to the new colonies, with exile considered a heavy punishment in ancient China. The Han engage in the same practice, transferring criminals to the frontiers for military service, with Emperor Wu and later emperors recruiting men sentenced to death for expeditionary armies. The Qin have mutilating punishments like nose cutting, but with tattooing as most common, with shame is its own heavy punishment in ancient China. They are not harsher for their time, and form a continuity with the early Han dynasty,[81] abolishing mutilations in 167 BC.[82][83]

Punishments in the Qin and early Han were commonly pardoned or redeemed in exchange for fines, labor or one to several aristocratic ranks, even up to the death penalty. Not the most common punishments, the Qin's mutilating punishment likely exist in part to create labor in agriculture, husbandry, workshops, and wall building.[84] Replacing mutilation, labor from one to five years becomes the common heavy punishment in early Imperial China, generally in building roads and canals.[85]

Han Feizi[edit]

The Qin took a congratulatory attitude towards laws and measures on their success, and the stele of the First Emperor promote his own consolidated model of governance as a permanent establishment for the ages. But the Han Feizi has a 'changing with the times' paradigm, only considering it a matter of necessity that rule by virtue could no longer be relied upon. Abstractly advocating laws, measures and punishments, although the Han Feizi does not much profess that the need for punishments will disappear, its main argument for them are that they are the government for the time.[86]

For Han Fei, the power structure is unable to bare an autonomous ministerial practice of reward and punishment. Han Fei mainly targets ministerial infringements. His main argument for punishment by law, Chapter 7's The Two Handles, is that delegating reward and punishment to ministers has led to an erosion of power and collapse of states in his era, and should be monopolized, using severe punishment in an attempt to abolish ministerial infringements, and therefore punishment. Han Fei's ruler abandons personal preferences in reward and punishment in favor of fa standards out of self-preservation, in-order to protect himself from the ministers.[87]

However, while Han Fei believes that a benevolent government that does not punish will harm the law, and create confusion, he also believes that a violent and tyrannical ruler will create an irrational government, with conflict and rebellion.[88] Shen Dao, technically the first member of Han Fei's triad between the figures at least by order of chapters, never suggests kinds of punishments, as that is not the point. The main point is that it would involve the ruler too much to decide them personally, exposing him to resentment. The ruler should decide punishments using fa standards.

Han Fei does does not suggest kinds of punishments either, and would not seem to care about punishment as retribution itself. He only cares whether they work, and therefore end punishments. Although "benevolence and righteousness" may simply be "glittering words", other means can potentially be included. Recalling Shang Yang, in contrast to him Han Fei places a more equal emphasis on reward to encourage people and produce good results; he does not believe government can be established by punishment.[89] Opposed to the paradoxes of the 'sophist' administrators in the school of names, devoted to the use of writing in administration, punishment for Han Fei was still secondary to simply controlling ministers through techniques, in particular simply through written agreements.[90][91]

Justice[edit]

Emphasizing a dichotomy between the people and state, the Book of Lord Shang in particular has been regarded as anti-people, with alienating statements that a weak people makes a strong military. But, such statements are concentrated in a few chapters, and the work does still vacillate against ministerial abuses.[80] Michael Loewe still regarded the laws as primarily concerned with peace and order. They were harsh in Shang Yang's time mainly out of hope that people will no longer dare to break them.[92][80]

Sima Qian argues the Qin dynasty, relying on rigorous laws, as nonetheless still insufficiently rigorous for a completely consistent practice, suggesting them as not having always delivered justice as others understood it.[93] Still, from a modern perspective, it is "impossible" to deny at least the "'basic' justice of Qin laws". Rejecting the whims of individual ministers in favor of clear protocols, and insisting on forensic examinations, for an ancient society they are ultimately more definable by fairness than cruelty.

With contradicting evidences, as a last resort, officials could rely on beatings, but had to be reported and compared with evidence, and cannot actually punish without confession. With administration and judiciary not separated in ancient societies, the Qin develop the idea of the judge magistrate as a detective, emerging in the culture of early Han dynasty theater with judges as detectives aspiring to truth as justice.[94][95]

Inasmuch as Han Fei has modernly been related to the idea of justice, he opposes the early Confucian idea that ministers should be immune to penal law. With an at least incidental concern for the people, the Han Feizi is "adamant that blatant manipulation and subversion of law to the detriment of the state and ruler should never be tolerated":[96]

Those men who violated the laws, committed treason, and carried out major acts of evil always worked through some eminent and highly placed minister. And yet the laws and regulations are customarily designed to prevent evil among the humble and lowly people, and it is upon them alone that penalties and punishments fall. Hence the common people lose hope and are left with no place to air their grievances. Meanwhile the high ministers band together and work as one man to cloud the vision of the ruler.

School of names[edit]

Words and names are essential to administration, and discussion of names and realities, being the connection between names and realities, were common to all schools in the classical period (500bce-150bce, as including the Mohists and posthumous categories of Daoists, Legalists and School of Names. Its earlier thinking was actually most developed by the Confucians, while later thinking was characterized by paradoxes. Although less Confucian, Han Fei can still be compared with the earlier Confucian rectification of names, together with the earlier Shen Buhai and Xun Kuang. Daoism represents an even higher degree of relativist skepticism. Shen Dao and Daoism question the premises of prior schools and any actual need for guidance, in particular that of the Confucians and Mohists, with their prior uses of language.[97][98]

Sima Qian originally glosses Shen Buhai, Shang Yang and Han Fei as adherents of the teaching of (xingming 刑名), which Creel titled "“performance and title”.[80] However, while, Shang Yang can be considered pioneering in the advancement of fa (standards) as law and governmental program more generally,[99] his early administrative method more simply connects names with benefits like profit and fame, to try to convince people to pursue benefits in the interest of the state.[100] More advanced Names and Realities discussions date to the later Warring States period, after Shang Yang, Shen Buhai, and Mencius.[101]

Sima Qian divided the schools (or categories) along elemental lines, as including Ming ("names" categories in the administration including contracts) for the Mingjia School of Names, and fa (standards in the administration including law and method) for the Fajia ("Legalists").[32] Both groupings are posthumous and have both elements, and share the same concerns, evaluating bureaucratic performance and examining the structural relationship between ministers and supervisors. The practices and doctrines of Shen Buhai, Han Fei and the school of names are indeed all termed Mingshi (name and reality) and Xingming (form and name).[102]

The school of names mingjia could also be translated as Legalists if either category had existed in the Warring States period, and would be more or less equally accurate and inaccurate.[103] The school of names used fa comparative models for litigation,[104] while the Qin dynasty made a more restrictive use of comparative model manuals to guide penal legal procedure, but still included such advanced concepts as intent, judicial procedure, defendant rights, and retrial requests.[105] The Zhuangzi slanders those who place the practice of Xingming and rewards and punishments over wu-wei as sophists and "mere technicians";[106] the Han dynasty term Mingjia (school of names) is applied to administrators earlier termed by the Zhuangzi as debaters (sophists).[32]

The term Fajia is applied to administrators discredited by later Han dynasty Confucians, in posthumous association with the Li Si, Qinshihuang, and the old harsh penal laws of Shang Yang. It includes people like Shen Buhai who were received as advising the use of administrative technique and supervision to abolish the punishment of ministers. Emperors like Wen who practiced Xingming, and Han dynasty governors who had been students of Li Si, were earlier famous for their clemency and the reduction of capital punishment, with Emperor Wen abolishing mutilitations.[107]

Xingming[edit]

Shang Yang can be considered pioneering in the advancement of fa (standards) as law and governmental program more generally,[99] but his early administrative method more simply connects names with benefits like profit and fame, to try to convince people to pursue benefits in the interest of the state.[100] Its more advanced discussions date to the later Warring States period, after Shang Yang, Shen Buhai, and Mencius.[101]

Han Fei's his late tradition develops its own unique names and realities (mingshi) method, under the term Xing-Ming. Naming individuals to their roles as ministers (e.g. "Steward of Cloaks"), in contrast to the earlier Confucians, Han Fei's Xing-Ming holds ministers accountable for their proposals, actions and performance. Their direct connection as an administrative function cannot be seen before Han Fei;[108] the late Warring States theories of Xun Kuang and the Mohists were still far more generalized;[109] Sima Tan proclaims the Daojia or "dao school" as adopting "the essentials of ming and fa".[32]

The term Xingming likely originates in school of names; the Zhan Guo Ce quotes one of their paradoxes: "Su Qin said to the King of Qin, 'Exponents of Xingming all say that a white horse is not a horse.'" Nonetheless, Suqin took Gongsun Long's white horse paradox to be a Xingming administrative strategy.[110] Despite opposition to the mingjia paradoxes, the Han Feizi provides a white horse strategy: the chief minister of Yan pretended to see a white horse dash out the gate. All of his subordinates denied having seen anything, save one, who ran out and returned claiming to have seen it, identifying him as a flatterer.[111]

There were also schoalars at the Jixia Academy who dealt in xingming and wuwei as arts of rule in some manner, using it for reward and punishment - as Han Fei does -, but would not be termed Legalists; they would be characterized as Daoistic. Those more characterizable as Legalistic dealt in fa standards, as well shu technique, as associated by Han Fei with Shen Buhai, and shi situational authority, as also associated with Shen Dao.[112]

An early bureaucratic pioneer, Shen Buhai was not so much more advanced as he was more focused on bureaucracy. Nonetheless, he can be taken as of the originator of the "Legalist doctrine of names" as understood by the later Han dynasty, which Han Fei terms Method or Technique (Shu). Han Fei says: "Method is to confer office in accordance with a candidate's capabilities; to hold achievement accountable to claim; and to examine the ability of the assembled ministers. This is controlled by the ruler."

The Huainanzi regards its literature as developing in the chaotic beginnings of Shen Buhai's state of Han. Although Shen Buhai uses the earlier school of names method-term mingshim or name and reality, while Xing-Ming is Han Fei's, Sima Qian and Liu Xiang attribute it back to the doctrine of Shen Buhai, described it as holding outcome accountable to claim. It becomes the term for secretaries of government who had charge of the records of decisions in criminal matters in the Han Dynasty, before its meaning degenerates into the "names of punishments" and is lost.[113][110]

Sources in Legalist Mythos[edit]

Jia Yi (200–169 BCE)[edit]

The Han dynasty mainly villainizes the First Emperor of China as arrogant and inflexible, blaming the second emperor for the fall of Qin. In the early Han, Jia Yi (200–169 BCE) associates the first Emperor with cruel punishments. Sima Qian claims Jia Yi, a student of Shang Yang and Shen Buhai, but while he likely had read both, he was a more likely proponent of Shen Buhai, supporting regulation of the bureaucracy and feudal lords.

Being both a Daoistic and Confucian doctrine, he favored the practice of Wu wei, or non-action by the ruler, against the practice of law. Despite advocating wuwei inaction by the ruler, and writing the Ten Crimes of Qin in opposition to harsh punishments, figures like Jia Yi were opposed for attempting to regulate the bureaucracy, leading to his banishment under ministerial pressure to teach the Emperor's sons.[114] Emperors practiced wu wei until the reign of Emperor Wu of Han (141-87bce), limiting themselves to the appointment of high ministers.[115]

Liu An (179–122 bce)[edit]

Sinologists Herrlee G. Creel and Yuri Pines cite the Huainanzi, associated with Liu An (179–122 bce), as the earliest combinational gloss of Shen Buhai with Shang Yang,[116] comparing them as one person with harsh punishments to their own doctrine.[117] Positively receiving reunification of the empire, the text opposes centralized government and the class of scholar-officials. With ideas of wuwei nonaction, the Huainanzi recommends that the ruler put aside trivial matters, and follow the ways of Fuxi and Nüwa, abiding in Empty Nothingness and Pure Unity. Placing ritual specialists lower than heavenly prognosticators, and aiming to demonstrate how every text that came before it is now part of it's own integral unity, the Huainanzi posed a threat to the Han court. Chapter 1 is based most strongly on Laozi, but otherwise most strongly resonates with the Zhuangzi, with influences from the Hanfeizi, Lüshi chunqiu, Mozi, and Guanzi, the Classic of Poetry, etc.[118]

When the First Emperor of Qin conquered the world, he feared that he would not be able to defend it. Thus, he attacked the Rong border tribes, repaired the Great Wall, constructed passes and bridges, erected barricades and barriers, equipped himself with post stations and charioteers, and dispatched troops to guard the borders of his empire. When, however, the house of Liu Bang took possession of the world, it was as easy as turning a weight in the palm of your hand.

In ancient times, King Wu of Zhou attacked and vanquished [tyrant] Djou at Muye... paid his respects at the ancestral temple of Cheng Tang, distributed the grain in the Juqiao granary, disbursed the wealth in the Deer Pavilio, destroyed the war drums and drumsticks, unbent his bows and cut their strings. He moved out of his palace and lived exposed to the wilds to demonstrate that life would be peaceful and simple. He lay down his waist sword and took up the breast tablet to demonstrate that he was free of enmity. As consequence, the entire world sang his praises and rejoiced in his rule while the Lords of the Land came bearing gifts of silk and seeking audiences with him. [His dynasty endured] for thirty-four generations without interruption.

Therefore the Laozi says: “Those good at shutting use no bolts, yet what they shut cannot be opened; those good at tying use no cords, yet what they tie cannot be unfastened.” 12.47

Simas Tan and Qian (165-86 bce)[edit]

Sima Qian

Prior Sima Tan and Sima Qian doctrines were identified only by teachers in connection with textual traditions; for those later termed Daoists, namely the early Laozi and Zhuangzi.[119] The Warring States period cannot be seen to have conceived what would later be termed the Daoists or Legalists, and did not form large scale, organized, continuous schools of masters and disciples in the sense of the Mohists and Confucians.[120][121] The writers of the first part of the Zhuangzi may not have been familiar with the Laozi.[72] Those later termed Daoists formed loose networks of master and disciple in the Warring States period, as text-based traditions brought together more fully in the Han dynasty.[38]

Sima Tan's (165–110 bce) Records, traditionally completed under Sima Qian (145–c.86 BCE), use the concept of Jia or family, inventing the abstract categories or schools of Fajia, Mingjia and Daojia. Together with Mohism, Confucianism, and Yin-Yang, he compares their purported strengths and weaknesses in promotion of what he dubs the Daojia or Dao-school, as a synthetic term which comes to mean Daoism a century after his death. As later used, the Mingjia school of names would seem to represent a social category of varying linguistic philosophical debaters, some of whom were administrators.[122][123]

With philosophical predecessors in the school of names, Sima Qian characterizes the Daojia in part by what is clearly Shen Buhai and Han Fei's administrative practice of 'xingming', or form and name, functioning as an assembly of ministers contracted by a preferably inactive ruler, without the punishments of Han Fei. Shen Buhai and Han Fei are the first visible advocates of it's particular form of government. With gloss at least anciently common, the Shiji lists Shen Buhai and Han Fei together with Shang Yang as adherents of xingming, asserting the First Emperor as proclaiming it's practice. He does not cite them for Daojia or name anyone under the Jia.[124][125]

Simply giving Shang Yang his own chapter, he places the biographies of Han Fei and Shen Buhai alongside Laozi and Zhuangzi,[126] claiming Shen Buhai, Shen Dao and Han Fei as drawing from what he terms Huang-Lao, or "Yellow Emperor and Laozi (Daoism)", along with foundational Han figures like Cao Shen and Chen Ping, the Empress Dou, and the benevolently received Emperor Wen of Han.[127] Sinologist Hansen of the Stanford Encyclopedia's Daoism is of the opinion that a Huang-Lao cult actually had come to dominate Qin intellectual life, early taking it's existence as demonstrated by the Mawangdui Silk Texts.[72]

However, although accepting the eclectic Han Fei, the Refords do not claim Shang Yang for the Daoistic current.[128] The Records blame Li Si, citing Han Fei, as purportedly combining the doctrines of Shang Yang and Shen Buhai within the Qin dynasty government under the Second Emperor. Originally a Confucian doctrine, Li Si is depicted as abusing Shen Buhai's doctrine of leaving duties to ministers to encourage the indolence and subservience of the young Emperor. Refraining from duties was supposed to allow Shen Buhai's ruler to take an active role in overseeing the administration.[129] If it's event occurred, the Qin would otherwise appear to have prior abandoned the harsh punishments of Shang Yang before the founding of the Qin dynasty.[130]

Emperor Wu (141-87bce)[edit]

Liu An, as traditional author of the Huainanzi, would be suppressed together with the Huang-Lao faction by other potential Han Feizi students, the Emperor Wu of Han (reign 141-87bce), Gongsun Hong and Zhang Tang, descriptively opposed in the Records. Under Confucian factional pressure, Emperor Wu dismisses the Yellow Emperor Daoists, Xingming theoreticians and those of other philosophies, and discriminates against students of Shang Yang, Shen Buhai and Han Fei. When older, those officials who praised Shang Yang and Li Si and denounced Confucius were upheld. Though not simply, the ministerial examination system would be instituted through the likely influence of Shen Buhai, and through him Han Fei, advocating appointment by methodologies of performance checking.[131]

Proclaiming the success of imperial rule, the Book of Han's Chapter 56 Dong Zhongshu biography contrasts the Qin with the Zhou dynasty. Along with high taxes, oppressive and deceptive officials, it is instead the Qin who failed to punish criminals, while the Zhou dynasty had law, punishments and appointment by merit. Contrasting with Confucius, Shen Buhai is glossed with Shang Yang, associating the figures together with the Qin again as purportedly implementing the theories of Han Fei, who has ideas of law, punishments and appointment by merit. A variation on the narrative is repeated in the translated Luxuriant Dew of the Spring and Autumn Annals, which otherwise includes several chapters combining the influences of Laozi, Shen Buhai, Han Fei, Mozi, and Guanzi.[132][28][80]

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Sources[edit]

External links[edit]