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LLegalism in Ancient China - History


Legalism in Ancient China

Legalism was developed by Han Fei Zi and Li Su. It was their contention that the state ought to have as much power as possible: the ideal state was an authoritarian state. Legalism believes that human nature is evil, thus a strong leader is needed to keep it in check.


The Ch’in Dynasty and Legalism in Ancient China Assignment

Running head: THE CH’IN DYNASTY AND LEGALISM IN ANCIENT CHINA The Ch’in Dynasty and Legalism in Ancient China The Ch’in Dynasty and Legalism in China The philosophical principles that Legalism was based upon, set it apart from other Chinese philosophical views. These differences appealed to the rulers of the Ch’in Dynasty as they began the unification of China, which gave rise to the first Empire of China. Legalism was based on the premise that humans are inherently evil. A basic punishment and rewards system was put in place.

Informers would be rewarded for reporting others for unlawful behavior. Harsh punishments were imposed upon those who were conducting the illegal behavior. The textbook, World History: Before 1600:The Development of Early Civilization mentions Shang Yang, Han Fei, and Li Ssu as some of the main Legalist leaders during the third and second centuries B. C. E. (Upshur, Pg. 109). The book, Chinese, Their History and Culture, credits Cheng or Shih Huang Ti, (meaning The First Emperor, as he was later named) as being the leader who directly affected the unification of the state.

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Li Ssu and Han Fei were pupils of Hsun tzu, whose theory of absolute power was in concurrence with their ideals. (Latourette, Pg. 67). These leaders and others applied the philosophies of Legalism to their government, and the used the concepts to unite the country. The accomplishments that the Ch’in Dynasty achieved, which led to the prosperity of the state, were largely due to the strict implementation of Legalist practices. Individuals were regarded as valuable only if they leant a hand to the prosperity of the state.

The Legalists believed that only farmers and soldiers were necessary, and the farm workers should be easily organized and deployed as needed for battle. This concept gave the Ch’in the strength the overcome all rivals in war and unite China, just a century after the implementation of Legalism. This philosophy led to a legal system that diminished social class, and eliminated the need for certain trades and philosophical occupations. This allowed the rulers to focus the civilizations efforts on producing raw material for trade and maintaining forces to avoid depredation from the Era of the Warring States, overcome ivals, and unite China. Legalism was based on the concept that all humans are inherently evil, and must be controlled by a system of rewards and punishment which applied to each person in the society. This eliminated the class systems, and focused the efforts of the people on farming and battle. Confucianism and Taoism preceded Legalism as major schools of thought in Ancient China. Confucianism held the belief in the inherent good of humanity, and that people should be ruled by morality and good example. They emphasized the importance of basing aristocracy on merit rather than birth right.

Taoism was based on the theory that humans are born innocent and corrupted by society. The Taoists believed that government interference should be minimal to none in regards to everyday practices. The philosophical views of Taoism were based on the concept of returning to innocence and a natural environment. The Legalist views differed greatly from these philosophies. The idea that all people were equal, and subject to the same laws, allowed leaders to gain control and homogenize society. Prince Cheng or Shih Huang Ti of the Ch’in Dynasty began the unification of China, and founded the first Empire of China’s history.

Chapter five in the book, A History of Chinese Civilization, spells out major unifying measures that were applied to each of the thirty-six commanderies’ or chun (which soon increased to forty-eight). The History of Chinese Civilization, offers a further understanding of these measures which included a single unit of currency, and standardized measurements and written symbols. The ancient walls dividing the kingdoms were brought down, roads and canals were developed, and all cart wheels were made with a standard wheel base.

The Great Wall of China was built on the northern frontier with the intent of avoiding depredation by the nomadic Hsuing-Nu. (Gernet, Pg. 107). The concepts that the Ch’in implemented stayed in effect throughout the fall of the Ch’in and the rise of the Han. The harsh penalties and control of the peasantry was successful in uniting China and bringing about the first Empire in China. The eventual fact that the leaders would face was that people will revolt if they are controlled. Regardless of the internal strife that China has suffered as a result, Legalism impacted the development of a overning system in China, unified the people, and ended the Era of the Warring States. References Gernet, Jacques. (1972) A History of Chinese Civilization (2nd edition). Translated by J. R. Foster, Charles Hartman. Cambridge University: England (1982). Latourette, Kenneth Scott. (1962) The Chinese: Their History and Culture. (4th Edition) The Macmillan Company: New York and Collier-Macmillan Limited: London. Upshur, Terry, Holoka, Gorr, Cassar. World History Before 1600: The Development of Early Civlization, Fourth Edition. Volume I. Thomas Wadsworth.


LLegalism in Ancient China - History

Legalism was a philosophy of administration in ancient China. Upon first acquaintance with this system it seems no more than a rationalization by political administrators for their having total political control of their societies. And perhaps this was the way Legalism arose, but over time the Legalist administrators and advisors formulated enough tenets and principles that their ideas had at least the semblance of a philosophy of political and social administration.

The era in which administrators openly avowed Legalism was about 300 BCE to 200 BCE, the time of the conquest of the six kingdoms of the Warring States Period by the Kingdom of Qin (Ch'in) i.e., the time of the creation of the Chinese Empire. Legalist ministers were instrumental in the strengthening of Qin to enable it to conquer the other kingdoms.

Before the conquest of the other kingdoms by Qin and the creation of the Chinese Empire, what is now China consisted of a multitude of principalities wracked by chronic warfare. Not only did the seven kingdoms go to war with each other, there were feudal subdivisions within the kingdoms which fought with each other and with the rulers of their kingdom.

Warfare in this Warring States period was a definite calamity for the people but the social and economic situations were not complete misery. The Chinese civilization of the time was a thousand to two thousand years ahead of Europe and the Middle East in terms of technology. At a time when no one in Europe or the Middle East could melt even one ounce of iron, in China people were casting multi-ton objects, a feat that Britain was not able to achieve until the eighteenth century.

The fractured politics of ancient China appeared to be an unnecessary burden upon an otherwise brilliant civilization. There had been attempts to unite the feuding states before Qin Shihuang conquered the other kingdoms. But such conquests had little effect on the fragmentation because the conquering monarch had to divide up control of the conquered states among his subordinates and they, in turn, divided up control of their territory among their subordinates. This hierarchical subdivision was the essence of feudalism. After a few generations the feudal subunits emerged as autonomous states ready and willing to fight with their overlords or the lords of other feudal subunits. Thus the conquests did not lead to consolidation. What was needed by the conquering states was not just a victory in the field but a system of governance that would retain control.

There were a number of philosophies of political administration that were vying for adoption by the monarchs of the kingdoms. Confucianism, which had arisen about 500 BCE, stressed the importance of filial allegiance and ritual and probably was the dominant philosophy of the time. The Confucians asserted that humans were basically good and that evil came from the failures of the systems under which they lived. Mohism was a philosophy propounded by Mo Ti (usually referred by the name of his book Mo Tzu), a teacher who initially was a Confucian. He proposed that the problems of humans could be solved by universal love. If everyone loved everyone then disputes could not exist, at least according to the Mohists. While that proposition might be acceptable the panacea lacked a practical path for its implementation.

Some of the royal administrators averred that from their experience humans were fundamentally evil, and given the opportunity would perpetrate the most appalling acts of selfishness, including, most importantly, disloyalty to their rulers. The administrators who became known as Legalists asserted that humans could be dissuaded from acting upon their selfish impulses only if they faced a set of rigidly enforced punishments for evil, selfish behavior. This meant that the basis for a just, prosperous and contented society is a set of well-publicized laws and the punishments that are to be meted out for their violation. Thus the name that was adopted for this philosophy of political administration is Legalism.

  • Shih: Power and position
  • Shu: Administrative techniques and methods
  • Fa: A Comprehensive system of laws.

The Legalists not only asserted that humans were by nature evil but they expanded their notion of evil to include those activities which were not deemed socially productive, such as reading and scholarship. The Legalists believed that the only productive occupations were farming and weaving. This meant that reading was simply a waste of the labor resources of the society. So all books other than those on farming, weaving and divination were burned, and those scholars who refused to heed the administrators' edicts against pursuing useless activities were punished and some were even buried alive.

The Legalists sanctioned military activities as essential to the survival and expansion of the political sector. The feudal nobility were individually required to demonstrate military prowess in order to be accepted as members of that class. However the Legalists destroyed the political power of that feudal class. Administrative control was removed from the feudal nobles and put into the hands of a professional bureaucracy. The bureaucrats could come from any class and entry was to be based upon ability rather than birth.

The heyday of Legalism was in the Kingdom of Qin just before the creation of the Chinese Empire. The Legalists hammered Qin into a strong state with a strong military. That enabled its armies to defeat the other kingdoms and create the Chinese Empire. But the Qin dynasty survived only a few years after the death of the first emperor. The Han dynasty that took over control of the empire adopted the Qin innovation of a professional bureaucracy to run the empire.


Contents

The Zhou dynasty was divided between the masses and the hereditary noblemen. The latter were placed to obtain office and political power, owing allegiance to the local prince, who owed allegiance to the Son of Heaven. [52] The dynasty operated according to the principles of Li and punishment. The former was applied only to aristocrats, the latter only to commoners. [53]

The earliest Zhou kings kept a firm personal hand on the government, depending on their personal capacities, personal relations between ruler and minister, and upon military might. The technique of centralized government being so little developed, they deputed authority to feudal lords. [54] When the Zhou kings could no longer grant new fiefs, their power began to decline, vassals began to identify with their own regions, [55] and schismatic hostility occurred between the Chinese states. Aristocratic families became very important, by virtue of their ancestral prestige wielding great power and proving a divisive force. [54]

In the Spring and Autumn period (771–476 BC), rulers began to directly appoint state officials to provide advice and management, leading to the decline of inherited privileges and bringing fundamental structural transformations as a result of what may be termed "social engineering from above". [3] : 59 [56] Most Warring States period thinkers tried to accommodate a "changing with the times" paradigm, and each of the schools of thought sought to provide an answer for the attainment of sociopolitical stability. [35]

Confucianism, commonly considered to be China's ruling ethos, was articulated in opposition to the establishment of legal codes, the earliest of which were inscribed on bronze vessels in the sixth century BC. [57] For the Confucians, the Classics provided the preconditions for knowledge. [58] Orthodox Confucians tended to consider organizational details beneath both minister and ruler, leaving such matters to underlings, [6] : 107 and furthermore wanted ministers to control the ruler. [14] : 359

Concerned with "goodness", the Confucians became the most prominent, followed by the proto-Taoists and the administrative thought that Sima Tan termed the Fajia. But the Taoists focused on the development of inner powers, [59] [60] [61] and both the Taoists and Confucians held a regressive view of history, the age being a decline from the era of the Zhou kings. [62]

In the four centuries preceding the first empire, a new type of ruler emerged intent on breaking the power of the aristocrats and reforming their state's bureaucracies. [65] [66] As disenfranchised or opportunist aristocrats were increasingly attracted by the reform-oriented rulers, [67] they brought with them philosophy concerned foremost with organizational methodology. [65] Successful reforms made the so-called "Fajia" significant, promoting the rapid growth [68] of the Qin state that applied reforms most thoroughly. [69]

The goal of the "Legalist" ruler was conquest and unification of all under heaven (or in the case of Shen Buhai at least defense), [14] : 345 and the writings of Han Fei and other Fajia are almost purely practical, eschewing ethics in favour of strategy [70] [71] [14] : 345 teaching the ruler techniques (shu) to survive in a competitive world [14] : 345 [72] through administrative reform: strengthening the central government, increasing food production, enforcing military training, or replacing the aristocracy with a bureaucracy. [72] Han Fei's prince must make use of Fa (administrative methods and standards), surround himself with an aura of wei (majesty) and shi (authority, power, influence), [62] [73] and make use of the art (shu) of statecraft. The ruler who follows Tao moves away from benevolence and righteousness, and discards reason and ability, subduing the people through Fa (statutes or administrative methods but implying objective measurements). Only an absolute ruler can restore the world. [73]

Though Han Fei espoused that his model state would increase the quality of life, he did not consider this a legitimizing factor (rather, a side-effect of good order). He focused on the functioning of the state, the ruler's role as guarantor within it, and aimed in particular at making the state strong and the ruler the strongest person within it. [74] To this end, Shen Buhai and successor Han Fei are concerned in particular with "the role of the ruler and the means by which he may control a bureaucracy."

Though the syncretic Han Feizi speaks on what may be termed law, what western scholarship termed the "Legalists" amongst other earlier terms, were concerned not mainly with law, but with administration. [44] [6] : 92–93,101,103 [75] [76] It has implications for the work of judges, but "contains no explicit judicial theory", [46] [77] and is motivated "almost totally from the ruler's point of view". [78] [79] [80] [77] Even the more "Legalistic" Book of Lord Shang still engages statutes more from an administrative standpoint, as well as addressing many other administrative questions. [34]

Anti-ministerialism and human nature Edit

The authority to make policy is a basic difference between Confucianism and the Fajia. Proposing a return to feudal ideals, albeit his nobleman being anyone who possessed virtue, [52] Confucians granted authority to "wise and virtuous ministers", allowed to "govern as they saw fit". [6] : 107 In contrast, Shen Buhai and Shang Yang monopolized policy in the hands of the ruler, [6] : 107 and Qin administrative documents focused on rigorous control of local officials, and the keeping of written records. [81] Distinguished by their anti-ministerial stance, [82] [83] the Fajia rejected their Confucian contemporaries' espousal of a regime based solely on the charisma of the aristocrats, [84] and much of Fajia's doctrines seek self-regulating and mechanically reliable, if not foolproof means to control or otherwise dispense with officials administering the state. Reducing the human element, the first of these is the universally applicable Fa (administrative methods and standards). [79] [3] : 59

Shen Buhai and his philosophical successor Han Fei considered the ruler to be in a situation of constant danger from his aides, [14] : 347 and the target of Han Fei's standards, in particular, are the scholarly bureaucracy and ambitious advisers – the Confucians. [14] : 347 Saying that "superior and inferior fight a hundred battles a day", [19] long sections of the Han Feizi provide example of how ministers undermined various rules, and focus on how the ruler can protect himself against treacherous ministers, emphatically emphasizing their mutually different interests. [85]

Though not exceptional, Sinologist Yuri Pines considers this selfish view of human nature to be a pillar of the Fajia, and a number of chapters of the Book of Lord Shang consider men naturally evil. The Fajia are therefore distinct from the Confucians (apart from their emphasis on Fa) in dismissing the possibility of reforming the elite, that being the ruler and ministers, or driving them by moral commitment. Every member of the elite pursues his own interests. Preserving and strengthening the ruler's authority against these may be considered the Fajia's "singularly pronounced political commitment". [86] On rare occasions, Han Fei lauds such qualities as benevolence and proper social norms with due consideration for the times they were living in however, the Fajia did not believe that the moral influence or virtue of the ruler was powerful enough to create order. [73]

Considering the power struggle between ruler and minister irreconcilable, and focusing on the prevention of evil rather than the promotion of good, the Fajia largely rejected the utility of both virtue and the Confucian rule of man, insisting on impersonal norms and regulations in their relations. [9] : 16 [87] [86] Their approach was therefore primarily at the institutional level, aiming for a clear power structure, consistently enforced rules and regulations, and in the Han Feizi, engaging in sophisticated manipulation tactics to enhance power bases. [88]

Rather than aristocratic fiefs, Qin territory came under the direct control of the Qin rulers, directly appointing officials on the basis of their qualifications. [89] With the state of Qin conquering all the Warring States and founding the "first" Chinese empire in 221 BC, the Fajia had succeeded in propelling state centralization and laying the foundations of Chinese bureaucracy, establishing "efficient and effective" codes that "became the pattern for Chinese politics for the next two millennia". [90] The philosophies of the reformers fell with the Qin, but tendencies remained in the supposedly Confucian imperial government, and the Han Feizi would be studied by rulers in every dynasty. [69] Hui even asserts that Confucianism's role in Chinese history is "[no] more than cosmetic", and Legalism is a more accurate description of the Chinese governmental tradition. [91]

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

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

R. Eno of Indiana University writes that "If one were to trace the origins of Legalism as far back as possible, it might be appropriate to date its beginnings to the prime ministership of Guan Zhong (720–645 BC)", [92] who "may be seen as the source of the notion that good government involved skilled systems design". The reforms of Guan Zhong applied levies and economic specializations at the village level instead of the aristocracy, and shifted administrative responsibility to professional bureaucrats. He valued education. [93]

Guan Zhong and later Mozi recommended objective, reliable, easily used, [94] [14] : 348–349 [95] publicly accessible standards, or models, opposing what Sinologist Chad Hansen terms the "cultivated intuition of self-admiration societies", an expert at chanting old texts. [14] : 348–349 [77] For Guan Zhong, Fa could complement any traditional scheme, and he uses Fa alongside the Confucian Li (the unique principles or standards of things, being their determinant and differentiating them), which he still valued. What Fa made possible was the accurate following of instructions. [14] : 348–349 [93] With minimal training, anyone can use Fa to perform a task or check results. [94] In principle, if their roots in Guan Zhong and Mozi are considered, the Legalists might all be said to use Fa in the same (administrative) fashion. [77] [96]

The Mohists advocated a unified, utilitarian ethical and political order, posting some of its first theories and initiating a philosophical debate in China. To unify moral standards, they supported a "centralized, authoritarian state led by a virtuous, benevolent sovereign managed by a hierarchical, merit-based bureaucracy". [97] That social order is paramount seems to be implicit, recognized by all. [98] They argued against nepotism, and, as with the later Fa "philosophers", for universal standards (or meritocracy) as represented by the centralized state, saying "If one has ability, then he is promoted. If he has no ability, then he is demoted. Promoting public justice and casting away private resentments – this is the meaning of such statements." [99] [100]

Often compared with Plato, [ citation needed ] the hermeneutics of the Mohists contained the philosophical germs of what Sima-Tan would term the "Fa-School" ("Legalists"), contributing to the political thought of contemporary reformers. [97] The Mohists and the Guanzi text attributed to Guan Zhong are of particular importance to understanding Fa, [101] meaning "to model on" or "to emulate". [14] : 349 [102] [103] Dan Robins of the University of Hong Kong considers Fa to have become "important in early Chinese philosophy largely because of the Mohists". [104]

Of particular concern for the Fajia and the Mohists, the fourth century witnessed the emergence of discussions polarizing the concepts of self and private, commonly used in conjunction with profit and associated with fragmentation, division, partiality, and one-sidelines, with that of the state and "public", represented by the duke and referring to what is official or royal, that is, the ruler himself, associated with unity, wholeness, objectivity, and universality. The latter denotes the "Universal Way". [105] Legalism and Mohism are distinguished by this effort to obtain objectivity. [106]

Mohist Hermeneutics Edit

Mohist and Legalist thought is not based on entities, transcendentals or universals, but parts or roles ("names"), [107] and are therefore relatable to the Confucian rectification of names, which arguably originates in Mozi's development of Fa. [14] : 348–349 [95] For the most part Confucianism does not elaborate on Fa (though Han Confucians embraced Fa as an essential element in administration), though the idea of norms themselves being older, [108] [14] : 348–349 Fa is theoretically derived from the Confucian Li. [109]

Rejecting the Confucian idea of parents as a moral model as particular and unreliable, the driving idea of the Mohists was the use of Hermeneutics to find objective models/standards (Fa) for ethics and politics, as was done in any practical field, to order or govern society. These were primarily practical rather than principles or rules, [110] as in the square and plumb-line. [38] The Mohists used Fa as "objective, particularly operational or measurement-like standards for fixing the referents of names", [111] hoping that analysis of language standards (Fa) would yield some objective way (dao) of moral reform. [77] [14] : 367 For Mozi, if language is made objective, then language itself could serve as a source of information and argued that in any dispute of distinctions, one party must be right and one wrong. [95]

While other terms might denote mere command, in comparison to the Western concept of law, the essential characteristic of Fa is measurement. [77] Mozi considered the elucidation of different "types" or "classes" to be the basis of both cognitive thinking and sociopolitical practice. [112] Referring to an easily projectable standard of utility, the Guanzi Mohists explain "Fa" as compasses or circles, [3] : 59 [14] : 347–348 [113] [114] and may be prototypes, exemplars, or (specific) analogies. [113]

Fa is never merely arbitrary or the ruler's desire, nor does it aim at an intellectual grasp of a definition or principle, but the practical ability to perform a task (dao) successfully, or to "do something correctly in practice" — and in particular, to be able to distinguish various kinds of things from one another. Measuring to determine whether distinctions have been drawn properly, Fa compares something against itself, and judges whether the two are similar, just as with the use of the compass or the L-square. What matches the standard is then the particular object, and thus correct. This constituted the basic conception of Mohist's practical reasoning and knowledge. [97] [94] [14] : 367 [77]

Those in the world who perform tasks cannot do without models (Fa) and standards. There is no one who can accomplish their task without models and standards. Even officers serving as generals or ministers, they all have models even the hundred artisans performing their tasks, they too all have models. The hundred artisans make squares with the set square, circles with the compass, straight lines with the string, vertical lines with the plumb line, and flat surfaces with the level. Whether skilled artisans or unskilled artisans, all take these five as models. The skilled are able to conform to them. The unskilled, though unable to conform to them, by following them in performing their tasks still surpass what they can do by themselves. Thus the hundred artisans in performing their tasks all have models to measure by. Now, for the greatest to order (zhi, also 'govern') the world and those the next level down to order great states without models to measure by, this is to be less discriminating than the hundred artisans. [97]

"Legalist" administration Edit

Despite the framing of Han historians, the Fajia did not seem to think they were using Fa differently than anyone else, [14] : 346,349,366 and the influence of the Mohists is likely strong. [115] All of the Fajia would adopt its usage. [77] Though Harvard professor Masayuki Sato translates Fa as law, he explains the concept as more like an objective measuring device. [116] : 141 Sinologist Mark Edward Lewis writes: language, such as that of a legal code, is linked to social control. If words are not correct, they do not correspond to reality, and regulation fails. "Law" is "purified", rectified, or technically regulated language. [117] [95] For Shen Buhai, correct or perverse words will order or ruin the state. [31] : 59 [6] : 68 Han Fei may also have borrowed his views on human nature from the Mohists. [118]

Han Fei credits Shang Yang with the practice of Fa in statecraft, [14] : 349,359 [38] to which Shang Yang and Han Fei intended their "legal codes" (Fa) be as "self-interpreting" (Hansen). [77] [38] Shang Yang's systematic application of penalties increase the tendency to see it as penal, but arguably does not change meaning from that of the Mohists. Shang Yang's innovation was not penal law. Rather, Shang Yang's idea was that penal codes should be reformed to have the same kind of objectivity, clarity and accessibility as the craft-linked instruments. [14] : 349,359 Contrasting Fa with private distortions and behavior, [14] : 367 theoretically, their Fa exactly follows Mozi. [14] : 349,359 [119] [38] Shang Yang was supposedly taught by a Confucian syncretist, Shi Jiao, who, stressing the importance of "name" (rectification of names), connected it with reward and punishment. [93]

Applied to economy and institution, Shang Yang's Fa is total and anti-bureaucratic, calculating rank mathematically from the adherence to standards (Fa) in the performance of roles (models), namely that of soldiers and (to a lesser extent) farmers. [14] : 349,359 [38] Han Fei shows no revolutionary insight into rules objectively-determined "models" (Fa) or "names" (titles/roles), being measured against, replace intuitive guidance, especially that of the ruler. It is these that enable control of a bureaucracy. [14] : 366 Carine Defoort of New York University explains:

Names are orders: by manipulating a network of names from his polar position, the ruler keeps everything under control. While his orders descend step by step through the official hierarchy to the furthest corners of the realm, performances ascend to be checked by him. [120]

Because Fa is necessary for articulating administrative terms, it is presupposed in any application of punishment, and Han Fei stressed measurement-like links between rewards and punishments and performance. Applied through incentives and disincentives, Fa provided guidance for behaviour, the performance of civil and military roles, and advancement. [14] : 349 [77] [3] : 59

An excavated Qin text consists of twenty-five abstract model patterns guiding procedure based on actual situations. [121]

Feng Youlan and Liang Qichao describe the elements of the Fajia as Fa (often translated as law, but closer to "standards" or "method" [122] ), authority or power (Shi), and "technique" (Shu), that is, statecraft or "the art of conducting affairs and handling men". [123] Less well defined compared to Confucianism and Mohism, it is unclear when the Fajia came to be regarded as an intellectual faction, only forming a complex of ideas around the time of Li Si (280–208 BC), elder advisor to the First Emperor. [124] While the earliest Legalistic act can be traced to Zichan (and with him Deng Xi), [125] Chinese scholar K. C. Hsiao and Sinologist Herrlee G. Creel considered the Fajia to have stemmed from two disparate contemporary thinkers, as described by Han Fei: [6] : 48,69,100,103,113 [123] [126] [13] : 81 [3] : 59 [127] [128] [9] : 15

Now Shen Buhai spoke about the need of Shu ("Technique") and Shang Yang practices the use of Fa ("Standards"). What is called Shu is to create posts according to responsibilities, hold actual services accountable according to official titles, exercise the power over life and death, and examine into the abilities of all his ministers these are the things that the ruler keeps in his own hand. Fa includes mandates and ordinances promulgated to the government offices, penalties that are definite in the mind of the people, rewards that are due to the careful observers of standards, and punishments that are inflicted upon those who violate orders. It is what the subjects and ministers take as a model. If the ruler is without Shu he will be overshadowed if the subjects and ministers lack Fa they will be insubordinate. Thus, neither can be dispensed with: both are implements of emperors and kings. [129] [6] : 94 [130] [131] [132] : 184 [133] [134]

In contrast the old feudalism and Shen Buhai, Shang or Gongsun Yang considered there to be no single model of rule in the past, and everything changeable as a product of changing conditions [135] [136] holding decline to have resulted from a scarcity of resources, he prescribed statecraft. [62] Questioning traditional rule and the relevance of the past to the present, [35] the first chapter of the Book of Lord Shang cites Gongsun as saying: "Orderly generations did not [follow] a single way to benefit the state, one need not imitate antiquity." [136] Distinguished by his heavy emphasis on penalty and mutual responsibility (among both minister and population), he instituted severe punishment for the Qin (later reduced). [13] : 93

Gongsun ultimately did not believe that the method of rule really mattered as long as the state was rich, [31] [137] and tried to dispense with the selection of exceptional men through insurance mechanisms while attacking moral discussion as empowering ministers. [106] His anti-bureaucracy may be seen as a precursor to that of Han Fei, [14] : 359 and together with their predecessor Mozi may be characterized as following a philosophical tradition of "objective, public, accessible standards" (Fa). [14] : 345 The Shang Yang school was favored, though not exclusively, by Emperor Wu of Han. [6] : 115

In contrast to Shang Yang, though seeking at the motivation of his subjects, Han Fei is much more skeptical of self-interest. [138] His other predecessor, Shen Buhai and with it his branch, sometimes even opposed punishments. Han Fei combined the branches. This combination is commonly known as the Fajia. [6] : 100,103 [126] Because, historically, the branches did not endorse each other's views, Creel often called the Shen Buhai group "administrators", "methodists" or "technocrats". [13] : 81 The Cambridge History of China nominally accepts this division, but Shen Buhai is still not widely precluded from the use of the term "Legalist", [139] Han Fei calling both the "instruments of Kings and Emperors" and Li Si praising them equally, finding no contradiction between them. [140] : 268 [139]

Sinologist Chad Hansen describes their difference as such: "Shen Buhai's shu ('techniques') limit the ministers' influence on the ruler Shang Yang's fa controls their power over the people." [77] [14] : 359

The scholar Shen Dao (350 – c. 275 BC) covered a "remarkable" quantity of Legalist and Taoistic themes. [141] Incorporated into the Han Feizi and The Art of War, he nonetheless lacked a recognizable group of followers. [31] : 32 [140] : 283 [13] : 93

Hailing from Wei, as Prime Minister of the State of Qin Shang Yang or Gongsun Yang engaged in a "comprehensive plan to eliminate the hereditary aristocracy". Drawing boundaries between private factions and the central, royal state, he took up the cause of meritocratic appointment, stating "Favoring one's relatives is tantamount to using self-interest as one's way, whereas that which is equal and just prevents selfishness from proceeding." [105]

As the first of his accomplishments, historiographer Sima Qian accounts Gongsun as having divided the populace into groups of five and ten, instituting a system of mutual responsibility [142] tying status entirely to service to the state. It rewarded office and rank for martial exploits, going to far as to organize women's militias for siege defense. The second accomplishment listed is forcing the populace to attend solely to agriculture (or women cloth production, including a possible sewing draft) and recruiting labour from other states. He abolished the old fixed landholding system (Fengjian) and direct primogeniture, making it possible for the people to buy and sell (usufruct) farmland, thereby encouraging the peasants of other states to come to Qin. The recommendation that farmers be allowed to buy office with grain was apparently only implemented much later, the first clear-cut instance in 243 BC. Infanticide was prohibited. [6] : 94 [54] [13] : 83 [143] [144] [145]

Gongsun deliberately produced equality of conditions amongst the ruled, a tight control of the economy, and encouraged total loyalty to the state, including censorship and reward for denunciation. Law was what the sovereign commanded, and this meant absolutism, but it was an absolutism of law as impartial and impersonal. Gongsun discouraged arbitrary tyranny or terror as destroying the law. [146] Emphasizing knowledge of the Fa among the people, he proposed an elaborate system for its distribution to allow them to hold ministers to it. [14] : 359 He considered it the most important device for upholding the power of the state. Insisting that it be made known and applied equally to all, posting it on pillars erected in the new capital. In 350, along with the creation of the new capital, a portion of Qin was divided into thirty-one counties, each "administered by a (presumably centrally appointed) magistrate". This was a "significant move toward centralizing Ch'in administrative power" and correspondingly reduced the power of hereditary landholders. [13] : 83 [147] [148]

Gongsun considered the sovereign to be a culmination in historical evolution, representing the interests of state, subject and stability. [149] [150] Objectivity was a primary goal for him, wanting to be rid as much as possible of the subjective element in public affairs. The greatest good was order. History meant that feeling was now replaced by rational thought, and private considerations by public, accompanied by properties, prohibitions and restraints. In order to have prohibitions, it is necessary to have executioners, hence officials, and a supreme ruler. Virtuous men are replaced by qualified officials, objectively measured by Fa. The ruler should rely neither on his nor his officials' deliberations, but on the clarification of Fa. Everything should be done by Fa, [13] : 88 [151] whose transparent system of standards will prevent any opportunities for corruption or abuse. [152] Shang Yang also corrected measures and weights. [153]

Anti-Confucianism Edit

While Shen Buhai and Shen Dao's current may not have been hostile to Confucius, [6] : 64 Shang Yang and Han Fei emphasize their rejection of past models as unverifiable if not useless ("what was appropriate for the early kings is not appropriate for modern rulers"). [154] [136] [77] [155] In the west, past scholars have argued that Shang Yang sought to establish the supremacy of what some have termed positive law at the expense of customary or "natural" law. [146] Han Fei argued that the age of Li had given way to the age of Fa, with natural order giving way to social order and finally political order. Together with that of Xun Kuang, their sense of human progress and reason guided the Qin dynasty. [156]

Intending his Dao (way of government) to be both objective and publicly projectable, [14] : 352 Han Fei argued that disastrous results would occur if the ruler acted on arbitrary, ad-hoc decision making, such as that based on relationships or morality which, as a product of reason, are "particular and fallible". Li, or Confucian customs, and rule by example are also simply too ineffective. [73] [157] [158] The ruler cannot act on a case-by-case basis, and so must establish an overarching system, acting through Fa (administrative methods or standards). Fa is not partial to the noble, does not exclude ministers, and does not discriminate against the common people. [158]

Linking the "public" sphere with justice and objective standards, for Han Fei, the private and public had always opposed each other. [105] Taking after Shang Yang he lists the Confucians among his "five vermin", [159] and calls the Confucian teaching on love and compassion for the people the "stupid teaching" and "muddle-headed chatter", [160] the emphasis on benevolence an "aristocratic and elitist ideal" demanding that "all ordinary people of the time be like Confucius' disciples". [73] Moreover, he dismisses it as impracticable, saying that "In their settled knowledge, the literati are removed from the affairs of the state . What can the ruler gain from their settled knowledge?", [161] and points out that "Confucianism" is not a unified body of thought. [162]

Assessments Edit

Keeping in mind the information of the time (1955) and the era of which he is speaking, A. F. P. Hulsewé goes as far as to call Shang Yang the "founder of the school of law", and considers his unification of punishments one of his most important contributions that is, giving the penalty of death to any grade of person disobeying the king's orders. Shang Yang even expected the king, though the source of law (authorizing it), to follow it. This treatment is in contrast to ideas more typical of archaic society, more closely represented in the Rites of Zhou as giving different punishments to different strata of society.

Hulsewe points out that Sima Tan considered equal treatment the "school of law's" most salient point: "They do not distinguish between close and far relatives, nor do they disriminate between noble and humble, but in an uniform manner they decide on them in law." [163] Though himself deriving them from elsewhere, the Han dynasty adopted essentially the same denominations of crimes, if not equality, as Shang Yang set down for Qin, without collective punishment of the three sets of relatives. [164]

Shang Yang appeared to act according to his own teachings, [163] and translator Duvendak references him as being considered "like a bamboo‑frame which keeps a bow straight, and one could not get him out of his straightness", even if spoken of by some pre-modern Chinese in ill regard with the fall of Qin. Though writing in 1928, Duvendak believed that Shang Yang should be of interest not just to Sinologists, but Western Jurists as well. [165]

The basic structure and operation of the traditional Chinese state was not "legalistic" as the term is commonly understood. Though persisting, pre-modern mainstream Chinese thinking never really accepted the role of law and jurisprudence or the Shang Yang wing of the Fajia. The Fajia's most important contribution lies in the organization and regulation of centralized, bureaucratic government. Sinologist Herrlee G. Creel called its philosophy administrative for lack of a better term, considering it to have been founded by Shen Buhai (400–337 BC), who likely played an "outstanding role in the creation of the traditional Chinese system of government". [ citation needed ]

Shen was chancellor of Han for fifteen years (354–337 BC). [6] : 81,113 [166] [13] : 90 [167] The Huainanzi says that when Shen lived the officials of the state of Han were at cross-purposes and did not know what practices to follow [168] [6] : 86 the legal system of Han was apparently confused, prohibiting uniform reward and punishment. It is not surprising then that no text identifies Shen Buhai with penal law. We have no basis to suppose that Shen advocated the doctrine of rewards and punishment (of Shang Yang, as Han Fei did), and Han Fei criticizes him for not unifying the laws.

A teacher of Legalist Li Kui, the Confucian Bu Shang is cited for the principle of favouring talents over favouritism, [169] becoming under the Mohists the principle of "elevating the worthy and employing ability". Adhering thereto, Shen utilized the same category of method (Fa) as others of the Fajia, but emphasized its use in secrecy for purposes of investigation and personnel control, concerning himself with methods (Fa) of (impersonal bureaucratic) administration (namely methods of appointment and performance measurement) or the ruler's role in the control thereof. [31] [6] : 100,103 [140] : 283 [13] : 93 He is famous for the dictum "The Sage ruler relies on standards/method (Fa) and does not rely on wisdom he relies on technique, not on persuasions." [170]

What Shen appears to have realized is that the "methods for the control of a bureaucracy" could not be mixed with the survivals of feudal government, or staffed merely by "getting together a group of 'good men ' ", but rather must be men qualified in their jobs. [6] : 86 [171] He, therefore, emphasizes the importance of selecting able officials as much as Confucius did, but insists on "constant vigilance over their performance", [6] : 65 never mentioning virtue. Well aware of the possibility of the loss of the ruler's position, and thus state or life, from said officials, [6] : 97 Shen says:

One who murders the ruler and takes his state . does not necessarily climb over difficult walls or batter in barred doors or gates. He may be one of the ruler's own ministers, gradually limiting what the ruler sees, restricting what he hears, getting control of his government and taking over his power to command, possessing the people and seizing the state. [6] : 97 [14] : 359 [172] [173] : 170

Compared with Shang Yang, Shen Buhai refers to the ruler in abstract terms: he is simply the head of a bureaucracy. In comparison with Han Fei though his system still required a strong ruler at the centre, [6] : 59–60,63 emphasizing that he trust no one minister. [167] Ideally, Shen Buhai's ruler had the widest possible sovereignty, was intelligent (if not a sage), had to make all crucial decisions himself, [31] : 59–60 and had unlimited control of the bureaucracy. [31] : 59–60 [173] : 170 Shen largely recommended that rulers investigate their ministers' performance, checking his ministers' reports while remaining calm and secretive (Wu wei). The ruler promotes and demotes according to the match between 'performance' and proposal (Xing Ming). [174]

Shen Buhai insisted that the ruler must be fully informed on the state of his realm, but could not afford to get caught up in details and in an ideal situation need listen to no one. Listening to his courtiers might interfere with promotions, and he does not, as Sinologist Herrlee G. Creel says, have the time to do so. The way to see and hear independently is the grouping together of particulars into categories using mechanical or operational method (Fa). On the contrary the ruler's eyes and hears will make him "deaf and blind" (unable to obtain accurate information). [6] : 81 [31] : 33,68–69 [140] : 283 [175] Seeing and hearing independently, the ruler is able to make decisions independently, and is, Shen says, able to rule the world thereby. [31] : 26

Shu or "Technique" Edit

Apart from Shang Yang's doctrine of penalties and mutual spying and denouncement among ministers, Han Fei recommends the ruler should protect himself through careful employment of doctrines that had earlier been recommended by Shen Buhai. [174] Because Fa has diverse meaning, for clarification Shen Buhai's successors often used the term Shu (technique) for his administrative method (Fa) and other techniques (such as "Wu-wei"), and thus 20th century philosopher Feng Youlan called Shen the leader of the group [in the Legalist school] emphasizing Shu, or techniques of government. [6] : 80 [176] [140] : 283 [177]

Liu Xiang wrote that Shen Buhai advised the ruler of men use technique (shu) rather than punishment, relying on persuasion to supervise and hold responsible, though very strictly. [6] : 81,103 [178] [179] Shu or Technique can easily be considered the most crucial element in controlling a bureaucracy. [180] Shen's doctrines are described as concerned almost exclusively with the "ruler's role and the methods by which he may control a bureaucracy" that is, its management and personnel control: the selection of capable ministers, their performance, the monopolization of power, [6] : 81,100,103 and the control of and power relations between ruler and minister which he characterized as Wu Wei. [14] : 359 The emphasis, however, is on "scrutinizing achievement and on that ground alone to give rewards, and to bestow office solely on the basis of ability". [6] : 93 [31] Sinologist John Makeham characterizes Shu as "the agency of several checking systems that together constituted Method (Fa)", whose central principle is accountability. [179] [181]

Sinologist Herrlee G. Creel believed the term originally had the sense of numbers, with implicit roots in statistical or categorizing methods, using record-keeping in financial management as a numerical measure of accomplishment. [96] [182] He notes that command of finance was generally held by the head of government from the beginning of the Zhou dynasty an example of auditing dates to 800 BC, and the practice of annual accounting solidified by the Warring States period and budgeting by the first century BC. [31] : 51 In the Guanzi the artisan's Shu is explicitly compared to that of the good ruler. [183] The History of the Han (Han Shu) lists texts for Shu as devoted to "calculation techniques" and "techniques of the mind", and describes the Warring States period as a time when the shu arose because the complete tao had disappeared. [184] Hsu Kai (920–974 AD) calls Shu a branch in, or components of, the great Tao, likening it to the spokes on a wheel. He defines it as "that by which one regulates the world of things the algorithms of movement and stillness". Mastery of techniques was a necessary element of sagehood. [184]

Another example of Shu is Chuan-shu, or "political maneuvering". The concept of Ch'uan, or "weighing" figures in Legalist writings from very early times. It also figures in Confucian writings as at the heart of moral action, including in the Mencius and the Doctrine of the Mean. Weighing is contrasted with "the standard". Life and history often necessitate adjustments in human behavior, which must suit what is called for at a particular time. It always involves human judgement. A judge that has to rely on his subjective wisdom, in the form of judicious weighing, relies on Ch'uan. The Confucian Zhu Xi, who was notably not a restorationist, emphasized expedients as making up for incomplete standards or methods. [185]

Name and reality (Ming-shih) Edit

A contemporary of Confucius, [189] the logician Deng Xi (died 501 BC) was cited by Liu Xiang for the origin of the principle of Xing-Ming. Serving as a minor official in the state of Zheng, he is reported to have drawn up a code of penal laws. Associated with litigation, he is said to have argued for the permissibility of contradictory propositions, likely engaging in hair-splitting debates on the interpretation of laws, legal principles and definitions. [190] Shen Buhai solves this through Wu wei, or not getting involved, making an official's words his own responsibility. [130] Shen Buhai says, "The ruler controls the policy, the ministers manage affairs. To speak ten times and ten times be right, to act a hundred times and a hundred times succeed – this is the business of one who serves another as minister it is the not the way to rule." [6] : 65 The correlation between Wu-wei and ming-shih (simplified Chinese: 名实 traditional Chinese: 名實 pinyin: míngshí ) likely informed the Taoist conception of the formless Tao that "gives rise to the ten thousand things". [191]

In the Han Dynasty secretaries of government who had charge of the records of decisions in criminal matters were called Xing-Ming, which Sima Qian (145 or 135 – 86 BC) and Liu Xiang (77–6 BC) attributed to the doctrine of Shen Buhai (400 – c. 337 BC). Liu Xiang goes as far as to define Shen Buhai's doctrine as Xing-Ming. [6] : 72,80,103–104 [192] [193] Shen actually used an older, more philosophically common equivalent, ming-shih, linking the "Legalist doctrine of names" with the name and reality (ming shih) debates of the school of names – another school evolving out of the Mohists. [194] [195] Such discussions are also prominent in the Han Feizi, [196] and the earliest literary occurrence for Xing-Ming, in the Zhan Guo Ce, is also in reference to the school of names. [197]

Ming ("name") sometimes has the sense of speech – so as to compare the statements of an aspiring officer with the reality of his actions – or reputation, again compared with real conduct (xing "form" or shih "reality"). [6] : 83 [198] [199] Two anecdotes by Han Fei provide examples: The Logician Ni Yue argued that a white horse is not a horse, and defeated all debaters, but was still tolled at the gate. In another, 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 after it and returned claiming to have seen it, and was thereby identified as a flatterer. [199]

Shen Buhai's personnel control, or rectification of names (such as titles) worked thereby for "strict performance control" (Hansen) correlating claims, performances and posts. [14] : 359 It would become a central tenant of both Legalist statecraft [197] and its Huang-Lao derivatives. Rather than having to look for "good" men, ming-shih or xing-ming can seek the right man for a particular post, though doing so implies a total organizational knowledge of the regime. [31] : 57 More simply though, it can allow ministers to "name" themselves through accounts of specific cost and time frame, leaving their definition to competing ministers. Claims or utterances "bind the speaker to the realization a job (Makeham)." This was the doctrine, with subtle differences, favoured by Han Fei. Favoring exactness, it combats the tendency to promise too much. [130] [199] [200] The correct articulation of Ming is considered crucial to the realization of projects. [130] [197]

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

  • That when a large group of people are living together, it is necessary to have some form of government.
  • The government has to be responsible for a wide range of things, to allow them to live together peacefully.
  • The government does not consist of one person only, but a group.
  • One is a leader that issues orders to other members, namely officials, and assigns responsibilities to them.
  • To do this, the leader must know the exact nature of the responsibilities, as well as the capabilities of the officials.
  • Responsibilities, symbolized by a title, should correspond closely with capabilities, demonstrated by performance.
  • Correspondence measures success in solving problems and also controls the officials. When there is a match, the leader should award the officials.
  • It is necessary to recruit from the whole population. Bureaucratic government marks the end of feudal government. [13] : 90

Wu wei (inaction) Edit

Playing a "crucial role in the promotion of the autocratic tradition of the Chinese polity", what is termed Wu wei (or inaction) would become the political theory of the Fajia (or "Chinese Legalists"), if not becoming their general term for political strategy. The (qualified) non-action of the ruler ensures his power and the stability of the polity, [201] and can therefore be considered his foremost technique. [202] The "conception of the ruler's role as a supreme arbiter, who keeps the essential power firmly in his grasp" while leaving details to ministers, would have a "deep influence on the theory and practice of Chinese monarchy". [6] : 99 Following Shen Buhai strongly advocated by Han Fei, during the Han dynasty up until the reign of Han Wudi rulers confined their activity "chiefly to the appointment and dismissal of his high officials", a plainly "Legalist" practice inherited from the Qin dynasty. [6] : 99 [203]

Lacking any metaphysical connotation, Shen used the term Wu wei to mean that the ruler, though vigilant, should not interfere with the duties of his ministers, [6] : 62–63 [13] : 92 acting through administrative method. Shen says:

The ruler is like a mirror, reflecting light, doing nothing, and yet, beauty and ugliness present themselves (or like) a scale establishing equilibrium, doing nothing, and yet causing lightness and heaviness to discover themselves. (Administrative) method (Fa) is complete acquiescence. (Merging his) personal (concerns) with the public (weal), he does not act. He does not act, and yet as a result of his non-action (wuwei) the world brings itself to a state of complete order. [6] : 64 [173] : 172

Though not a conclusive argument against proto-Taoist influence, Shen's Buhai's Taoist terms do not show evidence of explicit Taoist usage (Confucianism also uses terms like "Tao", or Wu wei), lacking any metaphysical connotation. [6] : 62–63 The Han Feizi has a commentary on the Tao Te Ching, but references Shen Buhai rather than Laozi for Wu wei. [6] : 69 Since the bulk of both the Tao Te Ching and the Zhuangzhi appear to have been composed later, Sinologist Herrlee G. Creel argued that it may therefore be assumed that Shen Buhai influenced them. [6] : 48,62–63 [13] : 92

Shen Buhai argued that if the government were organized and supervised relying on proper method (Fa), the ruler need do little – and must do little. [6] : 69 [31] : 66 Unlike Legalists Shang Yang and Han Fei, Shen did not consider the relationship between ruler and minister antagonistic necessarily. [204] Apparently paraphrasing the Analects, Shen Buhai's statement that those near him will feel affection, while the far will yearn for him, [6] : 67,81 [205] stands in contrast to Han Fei, who considered the relationship between the ruler and ministers irreconcilable. [86]

However, Shen still believed that the ruler's most able ministers are his greatest danger, [31] : 35 and is convinced that it is impossible to make them loyal without techniques. [206] Creel explains: "The ruler's subjects are so numerous, and so on alert to discover his weaknesses and get the better of him, that it is hopeless for him alone as one man to try to learn their characteristics and control them by his knowledge . the ruler must refrain from taking the initiative, and from making himself conspicuous – and therefore vulnerable – by taking any overt action." [6] : 66

Shen Buhai portrays the ruler as putting up a front to hide his dependence on his advisers. Aside from hiding the ruler's weaknesses, Shen's ruler, therefore, makes use of method (Fa) in secrecy. Even more than with Han Fei, Shen Buhai's ruler's strategies are a closely guarded secret, aiming for a complete independence that challenges "one of the oldest and most sacred tenets of [Confucianism]", that of respectfully receiving and following ministerial advice. [173] : 171–172, 185

Though espousing an ultimate inactive end, the term does not appear in the Book of Lord Shang, ignoring it as an idea for control of the administration. [6] : 69

Yin (passive mindfulness) Edit

Shen's ruler plays no active role in governmental functions. He should not use his talent even if he has it. Not using his own skills, he is better able to secure the services of capable functionaries. However, Sinologist Herrlee G. Creel also argues that not getting involved in details allowed Shen's ruler to "truly rule", because it leaves him free to supervise the government without interfering, maintaining his perspective. [6] : 65–66 [201] [130]

Adherence to the use of technique in governing requires the ruler not engage in any interference or subjective consideration. [207] Sinologist John Makeham explains: "assessing words and deeds requires the ruler's dispassionate attention (yin is) the skill or technique of making one's mind a tabula rasa, non-committaly taking note of all the details of a man's claims and then objectively comparing his achievements of the original claims." [207]

A commentary to the Shiji cites a now-lost book as quoting Shen Buhai saying: "By employing (yin), 'passive mindfulness', in overseeing and keeping account of his vassals, accountability is deeply engraved." The Guanzi similarly says: "Yin is the way of non-action. Yin is neither to add to nor to detract from anything. To give something a name strictly on the basis of its form – this is the Method of yin." [207] [208]

Yin also aimed at concealing the ruler's intentions, likes and opinions. [207] Shen advises the ruler to keep his own counsel, hide his motivations and conceal his tracks in inaction, availing himself of an appearance of stupidity and insufficiency. [6] : 67 [31] : 35

If the ruler's intelligence is displayed, men will prepare against it If his lack of intelligence is displayed, they will delude him. If his wisdom is displayed, men will gloss over (their faults) if his lack of wisdom is displayed, they will hide from him. If his lack of desires is displayed, men will spy out his true desires if his desires are displayed, they will tempt him. Therefore (the intelligent ruler) says "I cannot know them it is only by means of non-action that I control them." [6] : 66 [209] [132] : 185

Said obscuration was to be achieved together with the use of Method (Fa). Not acting himself, he can avoid being manipulated. [13] : 92

Despite such injunctions, it is clear that the ruler's assignments would still be completely up to him. [210]


HANDOUT OF SELECTED QUESTIONS

The Three Doctrines & Legalism

A student knows that they are failing a class. Students from each of these doctrines know they will be in trouble when their parents find out. How do they handle this situation? (see student responses #1 below)

A student's friends smoke and are trying to get them to start. How do they handle this situation? (see student responses #2 below)

A student has just found $20 in the hall. What should they do?

A student's parents have just spent a lot of money on a new outfit. The student has been playing around and has gotten ink all over it. What should they tell their parents, or should they?

A student really likes a new student in school, but all the other students are making fun of the new student's clothes. How should the first student act?

A student knows that an older brother or sister is cheating on tests. How should the student act?

A student sees an opportunity to take something they have really wanted, without being caught. How should that student act? (see student responses #7 below)


4. Maintaining the Bureaucracy

To rule and control the people effectively, the government should rely on an extensive bureaucracy but this bureaucracy in turn should be properly staffed and tightly monitored. It is with this regard that the Legalists made a lasting contribution to China&rsquos administrative thought and administrative practices. Their strongly pronounced suspicion of scheming ministers and selfish officials was conducive to the promulgation of impersonal means of recruitment, promotion, demotion, and performance control. These means became indispensable for China&rsquos bureaucratic apparatus for millennia to come (Creel 1974).

4.1 Recruitment and Promotion

One of the primary issues that the rulers of the Warring States faced was that of recruitment into government service. During the aristocratic Springs-and-Autumns period, the overwhelming majority of officials were scions of hereditary ministerial lineages only exceptionally could outsiders join the government. This situation changed by the fifth century BCE, as aristocratic lineages were largely eliminated in internecine struggles and members of lower nobility&mdashthe so-called &ldquomen of service,&rdquo shi 士&mdashcould advance up the ladder of officialdom. It was then that the new meritocratic discourse of &ldquoelevating the worthy&rdquo (shang xian 尚賢) proliferated and upward social mobility became legitimate (Pines 2013c). Yet who were the &ldquoworthy&rdquo and how to determine one&rsquos worthiness was a matter of considerable uncertainty and confusion. While certain texts presented highly sophisticated ways of discerning the employee&rsquos true worth (Richter 2005), their recommendations required exceptional perspicacity of an employer and were largely impractical. Instead, the most popular way of recruitment was based on a notion of &ldquorecognition&rdquo of one&rsquos worth (Henry 1987): an employee was recommended to the ruler (or to a high official), interviewed, and then his worth was &ldquorecognized&rdquo and high position assigned. This widespread practice was deeply resented by the Legalists. The very idea of reliance on vague concept of &ldquoworthiness&rdquo and on personal impression of the ruler as the primary means of recruitment was in their eyes fundamentally flawed, because it allowed manifold manipulations. Shang Yang explains why &ldquoworthiness&rdquo based on one&rsquos reputation is an intrinsically problematic concept:

What the world calls a &ldquoworthy&rdquo is one who is defined as upright but those who define him as good and upright are his clique (dang 黨). When you hear his words, you consider him able when you ask his partisans, they approve it. Hence, one is ennobled before one has any merits one is punished before one has committed a crime. (Shang jun shu 25: 136&ndash137 Book of Lord Shang 25.1)

&ldquoWorthiness&rdquo is too vague and too prone to manipulation by partisans to serve as an adequate means of promotion and relying on one&rsquos reputation or on an interview with the ruler are equally flawed methods. Similar views are echoed in Han Feizi and in other Legalist texts, such as &ldquoRelying on Standards&rdquo (&ldquoRen fa&rdquo 任法) chapter of Guanzi (Rickett 1998: 144&ndash151). Shen Dao further warns the ruler that if he decides on promotions and demotions on the basis of his personal impression, this will cause inflated expectations or excessive resentment among his servants:

When the ruler abandons the standard (fa 法) and relies on himself to govern, then punishments and rewards, recruitment and demotion all arise out of the ruler&rsquos heart. If this is the case, then even if rewards are appropriate, the expectations are insatiable even if the punishments are appropriate, lenience is sought ceaselessly. If the ruler abandons the standard and relies on his heart to decide upon the degree [of awards and punishments], then identical merits will be rewarded differently, and identical crimes will be punished differently. It is from this that resentment arises. (Shenzi, 52 Harris 2016: 120)

Decisions on matters of promotion and demotion should never be based on the ruler&rsquos heart not only because he can be misled and manipulated by unscrupulous aides, but also because any decision&mdasheven if correct one&mdashwhich is not based on impersonal standards will cause dissatisfaction among his underlings (see more in Harris 2016: 31&ndash34). An alternative will be a set of clear impersonal rules that will regulate recruitment and promotion of officials. For Shang Yang, recruitment will be based on the ranks of merit. Han Fei remains doubtful about these: after all, why should valiant soldiers who gained ranks of merit become good officials? Han Fei himself does not solve the problem of initial recruitment but develops ways to monitor subsequent promotion of an official:

Thus, as for the officials of an enlightened ruler: chief ministers and chancellors must rise from among local officials valiant generals must rise from among the ranks. One who has merit should be awarded: then ranks and emoluments are bountiful and they are ever more encouraging one who is promoted and ascends to higher positions, his official responsibilities increase, and he performs his tasks ever more orderly. When ranks and emoluments are great, while official responsibilities are dealt with in an orderly way&mdashthis is the Way of the Monarch. (Han Feizi 50: 460)

Promotion should be dissociated once and for all from the ruler&rsquos (or his ministers&rsquo) personal judgments. One should simply check an incumbent&rsquos performance on the lower level of bureaucracy, and promote him to higher positions with ever more responsibilities. This objective process of promotion according to measurable and objective merits became one of the hallmarks of the Chinese administrative system throughout the imperial era and beyond.

4.2 Monitoring Officials: Technique of Government

Rewards and punishments (primarily promotion and demotion) are the major handles through which the ruler has to control his officials. But how to judge their performance? Here the Legalists put forward the idea of xing ming 刑名: &ldquoperformance and title.&rdquo Although this compound is attested only in Han Feizi, throughout the Former Han dynasty it was most commonly identified with what we nowadays call &ldquoLegalism.&rdquo Han Fei explains what he means by xing ming:

Performance and title refers to statements and tasks. The minister presents his statement the ruler assigns him tasks according to his statement, and evaluates his merits exclusively according to the task. When the merit is in accordance with the task, and the task is in accordance with the statement, then [the minister] is awarded when the merit is not in accordance with the task, and the task is not in accordance with the statement, then he is punished. (Han Feizi 7: 40&ndash41)

The proposed way of estimating the official&rsquos performance is not entirely reasonable (why punish a minister for over-performing?) but at least it tries to establish firm criteria of evaluation, which in this case are related to the minister&rsquos own &ldquobid&rdquo (Goldin 2013: 8&ndash10). The advantages are clear: the system will prevent ministerial manipulations and will reaffirm the ruler&rsquos control over his officials. This latter point is of particular importance to the Legalists. Various means through which the ruler should monitor the ministers are named in Han Feizi and other Legalist texts as &ldquotechnique&rdquo (shu 術) or &ldquorules&rdquo (shù 數) (the meaning of both terms may overlap: Creel 1974: 125&ndash134 Yang 2010). Both terms are similar to fa but are narrower in their meaning, referring primarily to a variety of means through which the ruler controls his officials. Han Fei claims that shu is the hallmark of Shen Buhai&rsquos ideas, and explains its meaning as follows:

Technique is to give official positions in accordance with one&rsquos responsibility, to investigate reality in accordance with the name, to hold the handles of death and life, to assess the abilities of every minister. This is what the ruler should hold. (Han Feizi 43: 397)

This passage explains the general principles of Shen Buhai&rsquos &ldquotechniques&rdquo but does not detail how they functioned. &ldquoTechniques&rdquo and &ldquorules&rdquo are referred in Legalist texts as the best means of preserving the ruler&rsquos control: the enlightened ruler relies on these, while the benighted one in contrast casts these away and subsequently is misled by his ministers&rsquo delusive words and by persuaders&rsquo inducements (shui 說). Yet amid the strong emphasis on the power of techniques, rules, laws, and regulations, we can discover the sober realization that even these are not always enough, and that a perfect administrative system simply cannot come into existence. Thus, in one of the later chapters of the Book of Lord Shang it is said:

Nowadays, [the ruler] relies on many officials and numerous clerks to monitor them he establishes assistants and supervisors. Assistants are installed and supervisors are established to prohibit [officials] from pursuing [personal] profit yet assistants and supervisors also seek profit, so how they will able to prohibit each other? (Shang jun shu 24: 133 Book of Lord Shang 24.2)

This appears to be a rare insight concerning the administrative system&rsquos fundamental inability to monitor itself in the long term yet the observation does not lead to any radical alternatives to the system of supervision over officials. The chapter simply reasserts the superiority of techniques and rules over the ruler&rsquos personal intervention in policy-making and does not explain how these would prevent the supervisors&rsquo machinations. Insofar as techniques and rules are implemented by self-interested&mdashor simply erring&mdashhuman beings, the question remains: to what extent can the impersonal mode of rule cure the intrinsic maladies of the bureaucratic system (cf. Van Norden 2013)? This question remains one of the major challenges to the Legalists&rsquo legacy.


LLegalism in Ancient China - History

Legalism is an approach to the analysis of legal questions characterized by abstract logical reasoning focusing on the applicable legal text, such as a constitution, legislation, or case law, rather than on the social, economic, or political context.
In its narrower versions, legalism perpetuates the notion that the pre-existing body of authoritative legal materials already contains a uniquely pre-determined "right answer" to any legal problem that may arise and that the task of the judge is to ascertain that uniquely predetermined answer by an essentially mechanical process.
This Western school of the application of laws has little connection to the Chinese philosophical school of the same name that is discussed from here on.

In Chinese History, legalism (Chinese: 法家 pinyin Fǎjiā) was one of the four main philosophic schools in the Spring and Autumn Period and the Warring States Period (Near the end of the Zhou dynasty from about the sixth century B.C. to about the third century B.C.). It is actually rather a pragmatic political philosophy, with maxims like "when the epoch changed, the ways changed" as its essential principle, than a jurisprudence. In this context, "legalism" here can bear the meaning of "political philosophy that uphold the rule of law" and thus, distinguished from the word's Western sense. Hanfeizi believed that a ruler should govern his subjects by the following trinity:

  • Fa (Chinese: 法 pinyin: fǎ): law or principle. The law code must be clearly written and made public. All people under the ruler were equal before the law. Laws should reward those who obey them and punish accordingly those who dare to break them. Thus it is guaranteed that actions taken is systemically predictable. In addition, the system of law ran the state, not the ruler. If the law is successfully enforced, even a weak ruler will be strong.
  • Shu (Chinese: 術 pinyin: shù): method, tactic or art. Special tactics and "secrets" are to be employed by the ruler to make sure others don't take over control of the state. Especially important is that no one can fathom the ruler's motivations, and thus no one can know which behaviour might help them getting ahead except for following the fa or laws.
  • Shi (Chinese: 勢 pinyin: shì): legitimacy, power or charisma. It is the position of the ruler, not the ruler himself, that holds the power. Therefore, analysis of the trend, the context and the facts are essential for a real ruler.

Legalism was the central governing idea of the Qin Dynasty, culminating in the unification of China under the 'First Emperor' (Qin Shi Huang). This is the ruler featured in the 2002 movie Hero, and several other films.
Most Chinese philosophers and political thinkers have had very negative views toward Legalism blaming it for what today would be considered a totalitarian society. Many Chinese scholars believe that it was a reaction against legalism that gave Chinese Imperial politics its personalistic and moralistic flavor rather than emphasis on the rule of law. However, this view of the Qin may be biased, as most of the Chinese historical records were written by Confucian scholars, who were persecuted under the Qin.

In later dynasties, Legalism was discredited and ceased to be an independent school of thought. However, both ancient and modern observers of Chinese politics have argued that some Legalist ideas have merged with mainstream Confucianism and still have a role to play in government.
More recently, Mao Zedong, who had some knowledge of ancient Chinese philosophy, compared himself with Qin Shi Huang and publicly approved of some Legalist methods. However, since the 1990s the related concept of the rule of law has gained currency.

The Confucian thinker Xun Zi is sometimes considered as being influenced by or having nourished Legalist ideas, mostly because two of his disciples (Li Si and Han Fei Zi) were strict Legalists.

The history of Korea's legalism is traced to the Gyeonggukdaejeon, a law book compiled in the Joseon dynasty. There is a mixed perception of legalism within South Korean society, as the post-WWII military regime used the idea of legalism as a tool of its governance. The ideas are related to Chinese legalism, but often distinguished because of Korean distaste for what they see as Chinese use of legalism in attempting to legitimize Han imperialism. 1

  • Graham, A.C., Disputers of the TAO: Philosophical Argument in Ancient China (Open Court 1993). ISBN 0812690877

1- Song Dae-keun, "Use Legalism to Govern the Nation." Dong-a Ilbo, January 2, 2006


Multi-disciplinary, diverse and pervasive, Chinese culture encompasses a firm foothold in Eastern Asia. One of the most intellectual cultures in the world, this culture is responsible for major advanced technologies that took place in history as well as today. The axial rudder, the navigational compass and the heavy ploy, all responsible for the Industrial revolution, in fact were outcomes of the Chinese cultural intellectuality. This helps establish the view that Chinese culture is an amalgamation of traditions and intellectuality as follows. One of the most pre-historic cultures in the world, a striking feature of Chinese culture is the sub cultures within it and how ancestral items represent each sub culture.&hellip

The development of philosophy and politics in China has had an impact on the ethics of its society. Superstition has played an important role in China from ancient times when the royal family, to divine important dates and the outcome of battles, used oracle bones. The concept of “feng shui” has shaped Chinese society or hundreds of years and continues to play an important role in Chinese culture. Confucianism and its values have had a strong effect on Chinese people, both past and present. The role of the state and respect for authority contribute to an understanding of Chinese people.&hellip


LLegalism in Ancient China - History

9:22 PM Ancient Egypt 1 comment

Legalism
To help him rule his empire, Shi Huangdi put into place both written laws and a bureaucracy. The strict following of laws and use of bureaucracy is known as Legalism. Legalism taught that people obeyed their rulers out of fear, not out of respect. Under a system of Legalism, people who obey receive rewards. Those who do not obey are punished.

The most well-thought-out writings about Legalism were done by Master Han Fei (HAHN FAY). Han Fei's ideas were different from those of Confucius. Han Fei believed that a government based on virtues and respect would not work. Instead, he urged rulers to rely on laws and on the "two handles" of reward and punishment. Eventually, Han Fei introduced Shi Huangdi to his thoughts on Legalism.

What were the "two handles" Han Fei thought rulers should use?


Legalism

Leaglism is represented by Han Fei (Han Feizi — founder), Li Si, Gongsun Yang, Shen Dao, and Shen Buhai. The main literary work is the Han Feizi.

Legalism is the third important philosophy from the Warring States Period. It stresses the importance of ruling the country by law, regardless of one’s relationship or position. It emphasizes strict compliance with the law by all means.

Legalism’s view of economics is to reward agriculture, but restrain commerce. Its political doctrines include governing the country with strict and cruel laws autocratically.

As for education, it is intolerant of all other doctrines and philosophies — one should only follow the laws and teachings from government officials. Legalism provides an action plan for establishing an autocratic dynasty.

Legalism is represented by philosopher Han Fei also known as Han Fei Zi. (Image: wikimedia / CC0 1.0)


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