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), often translated as Legalism,[1] was a school of thought derived of classical Chinese philosophy. It represents several branches of thought of early thinkers mainly from the Warring States period, such as Guan Zhong, Li Kui, Shen Buhai, Shang Yang, Shen Dao, and Han Fei, whose reform ideas contributed greatly to the establishment of the bureaucratic Chinese empire. With an influence in the Qin, it formed into a school of thought in the Han dynasty. The Qin to Tang were more characterized by the 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.

Introduction[edit]

Mohism contains the early analytical elements of those later termed Fajia "Legalists", as well as the school of names "sophists" or "logicians", as sharing in similar administrative practices.[2] Those termed 'Legalists' can roughly be explained as originating in the reforms of Warring States period mobilizations,[3] as an early Daoistic tradition or way of organizational thought[4] based in the administrative power of the ruler. With a lasting contribution to the organization of the bureaucracy, and advising techniques to prepare the ruler for military conquest, it can be characterized as an almost purely administrative militarist realism, as critiqued by the Han Feizi.[5] Shang Yang and Han Fei's proposed rulers oversee colonization, taxes, the military, an instructive standardized penal law, and administration of the bureaucracy. Opposing traditional privileges, demagoguery, tyranny, and corvée, Han Fei allows ministers to volunteer themselves to office on the basis of proposals.[6]

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, and it is difficult to differentiate Han Fei from early Daoism. Although possessing a mythology, the early, more political Laozi of the Guodian Chu Slips, buried with other texts on statecraft, lacks in metaphysical content, while that of the Mawangdui Silk Texts place political commentaries first. The Guodian Laozi has an older context dealing in spirits and gods. As does the abstracted administration of the Han Feizi. Emphasizing governmental usages, together with the early Daodejing especially, Shen Buhai and Han Fei teach the political advantages of wu wei ("effortless action") as a method of control for survival, long life, and rule, refraining from action in-order to take advantage of favorable developments in affairs.[7]

Shen Buhai's Dao or Way refers only to administrative methods. His concept of Wu wei advocates reduced activity by a completely impartial ruler, leaving duties to ministers and teaching the ruler not to engage in actions that might harm the 'natural order of things'.[8] Han Fei promotes a doctrine of ascetic self-interest to the ruler in opposition to the ministers, teaching wu wei as emptiness and tranquility. Hidden and inactive, he responds to active ministers and affairs rather than acting himself. Although lacking the Daoistic indifference of Shen Dao, and potentially a late addition, his Way of the Ruler makes combined references to Laozi and Shen Buhai, including advice to reduce his expressions, desires and traditional wisdom.[9]

With a potential influence for Daoism, the Outer Zhuangzi lists the Mohists and Shen Dao as preceding Zhuangzi and Laozi.[10] 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 the his fragments;[11] Xun Kuang calls him "beclouded with fa (administrative method)", which is prominent in his work.[12] Although evidentially known in his time, he is only mentioned in the Shiji in a stub with other scholars of the Jixia Academy, like Xun Kuang and Mencius.[13][14] Sinologist Herrlee G. Creel found no following for him comparable to Shang Yang or Shen Buhai in the Warring States period or Han dynasty.[15]

Although the Han Feizi utilizes the Daodejing more as a theme, and lacks a definitive belief in daoistic universal moralities or natural laws,[16] their work's writers and early commentators likely could not tell the difference between their current and the Daoists.[17] Apart from Shang Yang if by himself, as differentiated at least by Sima Qian,[18] modern Chinese literature can still be seen to regard Shen Buhai, Shen Dao and Han Fei as Huang-Lao Daoist influenced, as termed by Sima Qian.[19] Although Sima Qian's Huang-lao category is generally taken as having been imposed backwards,[20] as compared with the Mawangdui Silk Texts, it's claims are not without merit.[21]

Categorization as Legalist[edit]

Considering the Qin remote in the Spring and Autumn period, central China in the Warring States period saw Shang Yang's Qin state as barbarian, writing little about it.[22][23] With Li Kui and Wu Qi taken as predecessors relevant for Shang Yang's native Wei state, Shang Yang only otherwise appears associated with the Shizi pre-Han, with only the late Han Feizi otherwise seen as adopting him.[24][25] Li Kui could theoretically have influenced Shen Buhai as mutually seeking meritocratic government, but Wei itself was otherwise a marginalized state of little interest to Warring States contemporaries.[26][27] As a late figure, Xun Kuang knew about Shen Buhai and Shen Dao, but still did not appear to know about Shang Yang.[28]

The fa school's various thinkers and statesmen had influences for the Warring States, Qin, Han and later dynasties. But no one ever called himself a "Fajia" Legalist, it's category is not indicated pre-Han, and they were probably never an organized school in the sense of the Confucians or Mohists; their posthumous categorization itself divides them from other thinkers with shared administrative practices, like the school of names. Although modernly some have taken figures like Shen Dao as suitable to it, before their categorization as Legalist, they only appear to have been known as individuals in connection with older ideologies.[29][30]

The combination of figures Shang Yang and Shen Buhai can first be seen in the Han Feizi, as essentially attributable for their categorization together under the 'fa school of thought' (Fajia).[31] Although Han Fei advocates their use together (with critique), they do not share a unified doctrine.[32] Han Fei presents Shen Buhai and Shang Yang as the opposite components of his doctrine in chapter 43 of his named text, with Shen Buhai as focused on the use of fa (standards) in the administration, termed (shu) administrative Method or Technique, and Shang Yang as focused on fa "standards" as including law; Han Fei considers both necessary.[33] According to Han Fei, Shen Buhai had disorganized law.[34]

Sima Tan and Sima Qian (145–c.86 BC) invented Fajia or "Legalism" in the Records of the Grand Historian as a "taxonomical category", or abstract school of thought, rather than a group of people or historical category. They originally defined it more in terms of office divisions and responsibilities, but as "strict and with little kindness".[35] They do not name anyone under the categories, and likely did not intend Han Fei's figures for it.[36] A political document aiming to demonstrate his own early Daoistic Huang-Lao ideology as best,[37] Sima Qian claims that Han Fei, Shen Buhai, and Shen Dao had studied it as a teaching based in Yellow Emperor,[38] including a chapter on the "Biographies of Laozi and Han Fei" that includes Shen Buhai; Shang Yang is simply given his own chapter.[39]

Combinations of Shen Buhai, Shang Yang and Han Fei became common starting in early Han dynasty literature, including the Huang-Lao Huainanzi.[40][41] It's author would be suppressed together with the Huang-Lao faction by two other likely Han Feizi students, the Shang-Yangian Emperor Wu of Han and Chancellor Gongsun Hong (130-121bc). Under Confucian factional pressure, Emperor Wu discriminated against students of Shang Yang, Shen Buhai and Han Fei in favor of the Confucians. When older, those officials who praised Shang Yang and Li Si and denounced Confucius were upheld. The ministerial examination system would be instituted through the likely influence of Shen Buhai and Han Fei.[42]

With Daoism and Confucianism contrasting, a confused revulsion against the Qin dynasty and old harsh laws of Shang Yang, abandoned before it's founding, occurs in the Han dynasty,[43] villainizing the first Emperor while adopting Qin administration.[44][45] Confucian archivists Liu Xiang (77–6BCE) and Liu Xin (c.46bce–23ce) appropriate the term, assigning it a fictional origin in an ancient department of criminal justice or "chief of prisons" for their imperial library classification system, together with departments for the other schools.[46][40] The Book of Han lists the 'school of fa' as a category of Masters Texts, as one of ten such categories,[47] prominently listing Han Fei and other main figures of the Han Feizi's later chapters, Shen Buhai, Shang Yang and Shen Dao.[48][49]

Evolutionary view of history[edit]

Although generalized as a commonality, what the Stanford Encyclopedia of Philosophy terms an evolutionary view of history has been associated more particularly with Gongsun Yang and Han Fei. 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.[50]

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 at the time as having no significance to the statesmen, even if they may be willing to conform the government to them.[51]

Hu Shih takes 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:[52]

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.[53]

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 are 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.[54]

The abolition of punishment[edit]

The Analects of Confucius vary in their view of punishment from acceptance to complete opposition.[55] Originally or not, it is included, but ritual was supposed to reduce the need for punishment by teaching morals. It was not considered proper to punish people who didn't know morals. If they do not know the reason, "they would not know where to put hand and foot".[56] Mohism believed in reward and punishment, but also motivations like love.[57]

Although not all of Shen Buhai's doctrine lines up with Confucianism, he does quote the analects. Liu Xiang regards Shen Buhai's work as advocating the use of administrative technique and supervision to hold responsible, and abolish (reduce the need for) punishment (within the bureaucracy, though Shen Buhai would become relevant for law in the Qin to Han dynasty).[58]

Aiming at quick results, the Book of Lord Shang repeatedly advocates the use of severe punishment to abolish punishment. It places emphasis however on spreading knowledge of the fa (law); "The multitude of people all know what to avoid and what to strive for; they will avoid calamity and strive for happiness, and so govern themselves."[59] Although harsh in Shang Yangs time, in the context of the Warring States period, fa or law as rewards and punishments were primarily concerned with peace and order.[60]

Han Fei is like Shang Yang with regards punishment, but mainly targets ministerial infringements, to control ministers and establish a larger order. Han Fei's main argument for punishment by law 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 to abolish infringements and therefore punishment. 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.[61][62]

Han Fei does not care about retribution or punishment itself. Although "benevolence and righteousness" may simply be "glittering words", other means than punishment can potentially be included. In contrast to Shang Yang, Han Fei places a more equal emphasis on reward to encourage people and produce good results. Although to some extent opposed to the arguments of the earlier school of names 'sophists', 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.[63][64][65]

The Qin dynasty[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 only considered it a matter of necessity that rule by virtue could no longer be relied upon. Han Fei has a 'changing with the times' paradigm. Although advocated abstractly, Han Fei's main argument for bureaucracy, laws and punishments are that they are the government for their time; his principles do not suppose his policies as indefinite. The texts later called 'Legalist' were mainly concerned with putting an end to the chaos of the Warring States period.[66][40]

Their texts were not entirely successful, in their own time, at arguing for laws, bureaucracy, and punishment. The Shangjunshu has a text with positive ideas about what an order based on laws and bureaucracy would look like, but less idea of how to get there, so that in it's own time it was largely theoretical. The Han Feizi's proposition to control ministers with laws and punishments was still largely theoretical. A couple of it's late Daoist chapters take on a metaphysical character in an attempt to legitimize fa laws and methods.[67]

Qin law includes such advanced concepts as intent, judicial procedure, defendant rights, retrial requests and distinctions between different kinds of law (common law and statutory law).[68] But it's penal law was only included alongside li ritual. While some Qin penal laws deal with infanticide or other unsanctioned harm of children, it primarily concerned theft; it does not much deal with murder. By contrast, detailed rules and "endless paperwork" tightly regulate grain, weights, measures, and official documents.[69][70]

Even if the Shangjunshu only passingly suggests that the need for punishment would pass away, and a more moral driven order evolve, the Qin nonetheless abandoned Shang Yang's heavy punishments before the founding of the Qin dynasty.[40] They still considered it suitable to use violence to stop violence,[71] but general punishments in the Qin dynasty were reduced to the expulsion of criminals to the new colonies, or pardon in exchange for fines, labor, or one to several aristocratic ranks, even up to the death penalty.[72]

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, Han Fei's predecessor Shen Buhai uses fa (standards) in the administration, which Creel translated as method.[73][74] 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 akin to law, and some use of reward and punishment, but generally use fa similarly to Shen Buhai: as an administrative technique.[73] Shen Buhai compares official's duties and performances, and Han Fei often uses fa in this sense, with a particular quotation from the Han Feizi as example:[75]

An enlightened ruler employs fa 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 as the Confucians, who held that laws cannot practice themselves. Han Fei says: "Although the laws were rigorously implemented by the officials, the ruler at the apex lacked methods." Han Fei's solution for unifying the various teachings of his forebears, including Confucianism and Mohism, is almost totally administrative, based in the ruler's power and methods.[76][77]

Han Fei's choice to include law is not accidental, and while intended to benefit the people, can be compared to a rule of law mainly in that, in contrast to method, once enacted, operates separately from him. 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.[78]

Shen Dao similarly uses fa (objective standards) as an administrative technique for determining reward and punishment in accordance with merit,[79] and Shang Yang himself addressed many administrative questions, including an agricultural mobilization, collective responsibility, and statist meritocracy. But Shang Yang himself addresses statutes mainly from an administrative standpoint.[80]

School of names[edit]

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").[81] Both posthumous groupings 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 all termed Mingshi (name and reality) and Xingming (form and name).[82]

In reference to the school of names, the Zhuangzi slanders those who place the practice of Xingming and rewards and punishments over wu-wei as sophists and "mere technicians".[83] Although inaccurate modernly, the school of names mingjia could also translated as Legalists if either category had existed in the Warring States period.[84] The school of names used fa (comparative models) for litigation,[85] 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.[86]

The Han dynasty term Mingjia (school of names) is applied to administrators earlier termed by the Zhuangzi as debaters (sophists).[81] The term Fajia is applied to administrators discredited by later Han dynasty Confucians in posthumous association with 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 (any need for) punishment. Emperors like Wen who practiced Xingming, and Han dynasty governors who had been students of Li Si, were earlier famous for their mercy and the reduction of capital punishment.

Words are essential to administration, and although associated with the school of names, discussion of names and realities were common to all schools (as including posthumous categories) in the classical period (500bce-150bce), including the Daoists, Mohists and Legalists. The school of name's earlier thinking was actually most developed by the Confucians, while later thinking was characterized by paradoxes and, in Daoism, an even higher degree of relativism.

It's more advanced discussions date to the later Warring States period, after Shang Yang, Shen Buhai, and Mencius; Sima Tan's Daojia or "dao school" "adopt the essentials of ming and fa".[87][88] Shang Yang can be considered pioneering in the advancement of fa (standards) as law and governmental program more generally,[89] 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.[90]

Xingming[edit]

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.[56] The Han Feizi provides a white horse stratetegy: 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.[91]

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", 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."

Shen Buhai uses the earlier school of names method-term, mingshi, name and reality. Although Xing-Ming is Han Fei's, Shen Buhai's doctrine becomes known as Xing-Ming. In the Han Dynasty, secretaries of government who had charge of the records of decisions in criminal matters were termed Xing-Ming, which Sima Qian and Liu Xiang attribute back to the doctrine of Shen Buhai, described as holding holding outcome accountable to claim.[56]

Although less Confucian, Han Fei can still be compared with the earlier Confucian rectification of names, together with Shen Buhai and Xun Kuang,[92][93] but his late tradition develops its own unique names and realities (mingshi) method, termed 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. The late theories of Xun Kuang and the Mohists were still far more generalized.[94]

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Sources[edit]

External links[edit]