Legalism (Chinese philosophy)
Legalism | ||
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Hanyu Pinyin Fǎjiā | | |
Bopomofo | ㄈㄚˇ ㄐㄧㄚ | |
Wade–Giles | Fa3-chia1 | |
Tongyong Pinyin | Fǎ-jia | |
IPA | [fà.tɕjá] | |
Yue: Cantonese | ||
Yale Romanization | Faatgā | |
Jyutping | faat3 gaa1 | |
IPA | [faːt̚˧ kaː˥] |
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Chinese legalism |
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Fajia (
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
Concerned largely with administrative and sociopolitical innovation, Shang Yang's reforms transformed the peripheral Qin state into a militarily powerful and strongly centralized kingdom, mobilizing the Qin to ultimate conquest of the other states of China in 221 BCE. With an administrative influence for the Qin dynasty, he had a formative influence for Chinese law. Succeeding emperors and reformers often followed the templates set by Han Fei, Shen Buhai and Shang Yang.
The Han Feizi's Lineage
Although propelling the Qin to power, central China likely did not know the remote Qin state's
Set against a backdrop of the late Warring States period's
In contrast to Daoism as later understood,
Their primarily administrative currents can roughly be explained as originating in the reforms of
Likely a well known philosopher in his time from the
In a struggle against regulation of the semi-feudal bureaucracy, and between Confucianism and Daoism, a revulsion against the Qin dynasty developed over the course of the Han dynasty.[21] Han Fei, Shen Buhai and Shang Yang would be associated with purportedly harsh Qin dynasty practices.[22] Against a background of Han dynasty political upheaval, and associations surrounding them and the Qin dynasty, they would be artificially separated out together as Legalists.[23][24]
Changing with the times
Taken as a commonality, what the
In what
Graham compares Han Fei in particular with the
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.[28]
As a counterpoint, Han Fei and Shen Dao do still employ argumentative reference to 'sage kings'; Han Fei claims the distinction between the ruler's interests and private interests as said to date back to Cangjie, while government by Fa (standards) is said to date back to time immemorial. Han Fei considers the demarcation between public and private a "key element" in the "enlightened governance" of the purported former kings.[29]
Legalists or Administrators?
Containing the first direct references to the
Glossing him with Shang Yang, only three Han texts depict Shen Buhai as a penal figure, being a partisan gloss in the Huainanzi, a gloss in the debates of the Discourses on Salt and Iron, and the Book of Han's Department of Prisons. Although his administrative ideas would be relevant for penal records by the Han dynasty, in contrast to Shang Yang, no Han text discussing him by himself identifies him with penal law, and none pre-Han, only connecting him with control of the bureaucracy. As a modernly reiterated example, he can still be seen in a fifth century text as a figure who advocated administrative technique, supervision and accountability to abolish the punishment of ministers.[32]
With the
Shen Dao makes some use of fa akin to law. He generally uses fa objective standards as a technique to determine reward and punishment in accordance with merit.
Han Fei
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 1961 Legalists or Administrators?. As Han Fei presents, while Shang Yang most commonly has fa (standards) as law, Shen Buhai uses fa (standards) in the administration, which Creel translated as method. Han Fei elementalizes him under the term Shu technique, but otherwise quotes him as using fa. Fa standards have a much broader meaning than law. Shang Yang's usage of them as law is only one example.[16][36]
More broadly, together with Shen Buhai and Shen Dao, Han Fei is primarily an administrator, not a legislator. Han Fei and Shen Dao make some use of fa (standards) as akin to law, and some use of reward and punishment, but generally use fa standards similarly to Shen Buhai: as an administrative technique.[16] Shen Buhai uses fa (standards) to compare official's duties and performances, and Han Fei often uses fa in this sense, with a particular quotation from the Han Feizi as example:[37]
An enlightened ruler employs fa (standards) to pick his men; he does not select them himself. He employs fa to weigh their merit; he does not fathom it himself. Thus ability cannot be obscured nor failure prettified. If those who are [falsely] glorified cannot advance, and likewise those who are maligned cannot be set back, then there will be clear distinctions between lord and subject, and order will be easily [attained]. Thus the ruler can only use fa.
Blaming Shang Yang for too much reliance on law, Han Fei critiques him in much the same way that the Confucians critique law, holding that laws cannot practice themselves. Han Fei says: "Although the laws were rigorously implemented by the officials, the ruler at the apex lacked methods." [38][39]
Han Fei's choice to include law is not accidental, and is at least indirectly intended to benefit the people, insomuch as the state is benefited by way of order. It can mainly be compared to a rule of law inasmuch as it serves purposes beyond simply that of the ruler, generally operating separately from him once established. Han Fei says: "The enlightened ruler governs his officials; he does not govern the people." The ruler cannot jointly govern the people in a large state. Nor can his direct subordinates themselves do it. The ruler wields methods to control officials.[40]
The Book of Lord Shang itself addresses statutes mainly from an administrative standpoint, and addresses many administrative questions, including an agricultural mobilization, collective responsibility, and statist meritocracy.
Han Fei and Laozi
More political than a typical reading of the
Han Fei has a context spanning the Mozi to Huainanzi,[45] but he and his wu-wei institutions bare more resemblance to the latter Huang-Lao typified works of the early Han. In purported opposition to the ministers the ruler has to employ, Han Fei promotes a doctrine of ascetic self-interest to the ruler, teaching wu wei as emptiness and tranquility. Hidden and inactive, he responds to active ministers and affairs rather than acting himself.
Including some of Han Fei's other ideas, his eclectic Way of the Ruler (Chapter 5) parrelels
Sima Qian's Huang-Lao category has generally been taken as imposed backwards.
An interpretation of the
The Han Feizi's late
Eradicating punishments
Translator
If at least part of the Han Feizi dates date to its period, the
Gongsun Yang said: "When [the state] implements punishments, inflicts heavy [punishments] on light [offenses]: then light [offenses] will not come, and heavy [crimes] will not arrive. This is called: 'eradicating punishments with punishments'.
As Pines recalls, even if the Shangjunshu only passingly suggests that a need for punishment would pass away, and a more moral driven order evolve, the Qin nonetheless did abandon them.[58] As a component of general colonization, the most common heavy punishment was expulsion to the new colonies, with exile considered a heavy punishment in ancient China. The Han engage in the same practice, transferring criminals to the frontiers for military service, with Emperor Wu and later emperors recruiting men sentenced to death for expeditionary armies. The Qin have mutilating punishments like nose cutting, but with tattooing as most common, with shame it's own heavy punishment in ancient China. They are not harsher for their time, and form a continuity with the early Han dynasty,[59] abolishing mutilations in 167 BC.[60][61]
Punishments in the Qin and early Han were commonly pardoned or redeemed in exchange for fines, labor or one to several aristocratic ranks, even up to the death penalty. Not the most common punishments, the Qin's mutilating punishment likely exist in part to create labor in agriculture, husbandry, workshops, and wall building.[62] Replacing mutilation, labor from one to five years becomes the common heavy punishment in early Imperial China, generally in building roads and canals.[63]
Han Feizi
The Qin took a congratulatory attitude towards laws and measures on their success, and the stele of the First Emperor promote his own consolidated model of governance as a permanent establishment for the ages. But the Han Feizi has a 'changing with the times' paradigm, only considering it a matter of necessity that rule by virtue could no longer be relied upon. Abstractly advocating laws, measures and punishments, although the Han Feizi does not much profess that the need for punishments will disappear, its main argument for them are that they are the government for the time.[64]
For Han Fei, the power structure is unable to bare an autonomous ministerial practice of reward and punishment. Han Fei mainly targets ministerial infringements. His main argument for punishment by law, Chapter 7's The Two Handles, is that delegating reward and punishment to ministers has led to an erosion of power and collapse of states in his era, and should be monopolized, using severe punishment in an attempt to abolish ministerial infringements, and therefore punishment. Han Fei's ruler abandons personal preferences in reward and punishment in favor of fa standards out of self-preservation, in-order to protect himself from the ministers.[65]
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.[66] Shen Dao, technically the first member of Han Fei's triad between the figures, at least by order of chapters, never suggests kinds of punishments, as that is not the point. The main point is that it would involve the ruler too much to decide them personally, exposing him to resentment. The ruler should decide punishments using fa standards.[67]
Han Fei does does not suggest kinds of punishments either, and would not seem to care about punishment as retribution itself. He only cares whether they work, and therefore end punishments. Although "benevolence and righteousness" may simply be "glittering words", other means can potentially be included. Recalling Shang Yang, in contrast to him Han Fei places a more equal emphasis on reward to encourage people and produce good results; he does not believe government can be established by punishment.
Justice
Emphasizing a dichotomy between the people and state, the
Sima Qian argues the Qin dynasty, relying on rigorous laws, as nonetheless still insufficiently rigorous for a completely consistent practice, suggesting them as not having always delivered justice as others understood it.[72] Still, from a modern perspective, it is "impossible" to deny at least the "'basic' justice of Qin laws". Rejecting the whims of individual ministers in favor of clear protocols, and insisting on forensic examinations, for an ancient society they are ultimately more definable by fairness than cruelty.
With contradicting evidences, as a last resort, officials could rely on beatings, but had to be reported and compared with evidence, and cannot actually punish without confession. With administration and judiciary not separated in ancient societies, the Qin develop the idea of the judge magistrate as a detective, emerging in the culture of early Han dynasty theater with judges as detectives aspiring to truth as justice.[73][74]
Inasmuch as Han Fei has modernly been related with the idea of justice, he opposes the early Confucian idea that ministers should be immune to penal law. With an at least incidental concern for the people, the Han Feizi is "adamant that blatant manipulation and subversion of law to the detriment of the state and ruler should never be tolerated":[75]
Those men who violated the laws, committed treason, and carried out major acts of evil always worked through some eminent and highly placed minister. And yet the laws and regulations are customarily designed to prevent evil among the humble and lowly people, and it is upon them alone that penalties and punishments fall. Hence the common people lose hope and are left with no place to air their grievances. Meanwhile the high ministers band together and work as one man to cloud the vision of the ruler.
School of names
Words and names are essential to administration, and discussion of names and realities, being the connection between names and realities, were common to all schools in the classical period (500bce-150bce), as including the Mohists and posthumous categories of Daoists, Legalists and
Sima Qian originally glosses Shen Buhai, Shang Yang and Han Fei as adherents of the teaching of (xingming 刑名), which Creel titled "“performance and title”.[58] However, while, Shang Yang can be considered pioneering in the advancement of fa (standards) as law and governmental program more generally,[78] 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.[79] More advanced Names and Realities discussions date to the later Warring States period, after Shang Yang, Shen Buhai, and Mencius.[80]
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 groupings are posthumous and have both elements, and share the same concerns, evaluating bureaucratic performance and examining the structural relationship between ministers and supervisors. The practices and doctrines of Shen Buhai, Han Fei and the school of names are indeed all termed Mingshi (name and reality) and Xingming (form and name).[82]
The school of names mingjia could also be translated as Legalists if either category had existed in the Warring States period, and would be more or less equally accurate and inaccurate.
The term Fajia is applied to administrators discredited by later Han dynasty Confucians, in posthumous association with the
Xingming
Han Fei's his late tradition develops its own unique names and realities (mingshi) method, under the term Xing-Ming. Naming individuals to their roles as ministers (e.g. "Steward of Cloaks"), in contrast to the earlier Confucians, Han Fei's Xing-Ming holds ministers accountable for their proposals, actions and performance. Their direct connection as an administrative function cannot be seen before Han Fei;[88] the late Warring States theories of Xun Kuang and the Mohists were still far more generalized;[89] Sima Tan proclaims the Daojia or "dao school" as adopting "the essentials of ming and fa".[81]
The term Xingming likely originates in
There were also schoalars at the Jixia Academy who dealt in xingming and wuwei as arts of rule in some manner, using it for reward and punishment - as Han Fei does -, but would not be termed Legalists; they would be characterized as Daoistic. Those more characterizable as Legalistic dealt in fa standards, as well shu technique, as associated by Han Fei with Shen Buhai, and shi situational authority, as also associated with Shen Dao.[92]
An early bureaucratic pioneer, Shen Buhai was not so much more advanced as he was more focused on bureaucracy. Nonetheless, he can be taken as of the originator of the "Legalist doctrine of names" as understood by the later Han dynasty, which Han Fei terms Method or Technique (Shu). Han Fei says: "Method is to confer office in accordance with a candidate's capabilities; to hold achievement accountable to claim; and to examine the ability of the assembled ministers. This is controlled by the ruler."
The Huainanzi regards its literature as developing in the chaotic beginnings of Shen Buhai's state of Han. Shen Buhai uses the earlier school of names method-term mingshi, or name and reality, while Xing-Ming is Han Fei's. Sima Qian and Liu Xiang attribute it back to the doctrine of Shen Buhai, describing it as holding outcome accountable to claim. It becomes the term for secretaries of government who had charge of the records of decisions in criminal matters in the Han Dynasty, before its meaning degenerates into the "names of punishments" and is lost.[93][90]
Sources in Legalist Mythos
Jia Yi (200–169 BCE)
The Han dynasty mainly villainizes the
Being both a Daoistic and Confucian doctrine, he favored the practice of Wu wei, or non-action by the ruler, against the practice of law. Despite advocating wuwei inaction by the ruler, and writing the Ten Crimes of Qin in opposition to harsh punishments, figures like Jia Yi were opposed for attempting to regulate the bureaucracy, leading to his banishment under ministerial pressure to teach the Emperor's sons.[94]
Liu An (179–122 bce)
When the First Emperor of Qin conquered the world, he feared that he would not be able to defend it. Thus, he attacked the Rong border tribes, repaired the Great Wall, constructed passes and bridges, erected barricades and barriers, equipped himself with post stations and charioteers, and dispatched troops to guard the borders of his empire. When, however, the house of
Liu Bangtook possession of the world, it was as easy as turning a weight in the palm of your hand.In ancient times, King Wu of Zhou attacked and vanquished [tyrant] Djou at Muye... paid his respects at the ancestral temple of Cheng Tang, distributed the grain in the Juqiao granary, disbursed the wealth in the Deer Pavilio, destroyed the war drums and drumsticks, unbent his bows and cut their strings. He moved out of his palace and lived exposed to the wilds to demonstrate that life would be peaceful and simple. He lay down his waist sword and took up the breast tablet to demonstrate that he was free of enmity. As consequence, the entire world sang his praises and rejoiced in his rule while the Lords of the Land came bearing gifts of silk and seeking audiences with him. [His dynasty endured] for thirty-four generations without interruption.
Therefore the Laozi says: “Those good at shutting use no bolts, yet what they shut cannot be opened; those good at tying use no cords, yet what they tie cannot be unfastened.” 12.47
Sima Qian's Daojia
Prior
Using the concept of 'Jia' or 'family', in their
Placing the biographies of Han Fei and Shen Buhai alongside
Sima Qian would more likely be interpreting the Han Feizi through Chapter 5, which incorporates the works of Laozi and Shen Buhai, with Han Fei a third voice.[47] Han Fei attempts to convince the ruler to reduce his activity and adopt administrative government, enforcing contracts, verifying reports, and claiming ministerial achievements, the ministers trembling at his quiet repose. The Han Feizi more broadly depicts numerous dangers from ministers, attempting to convince the ruler that all such things as law, rather than luxury, are primarily intended to benefit his insufficiently powerful persona. It is modernly difficult to believe that what would otherwise be a legislative rule of law was only intended to benefit Han Fei's monarch.[104][105]
Daois the beginning of the myriad things, the standard of right and wrong... by virtue of resting empty and reposed, the intelligent ruler waits for the course of nature to enforce itself... Empty, he knows the essence of fullness: reposed, he becomes the corrector of motion.
Sima Qian's work is clearly political, and all of his 'schools' descriptively flawed, orbiting his empty Dao-school, which "responds to the transformation of things".
As another reportedly dangerous minister from the empty darkness of the late Qin, Sima Qian depicts Imperial Chancellor
The Fa School
Inasmuch as the term Legalism has been used modernly, Dingxin Zhao characterizes the
Undoubtedly associating Shang Yang primarily with penal law, no received Han text ever attempted to individually argue or obfuscate Shen Buhai a penal figure. Contrasting with Confucius and the Zhou dynasty, Dong Zhongshu (179–104 BC) simply associates Shen Buhai and Shang Yang with the Qin again as reportedly implementing the ideas of Han Fei. Asserting that the Qin, with high taxes and oppressive officials, had declined amidst a failure to punish criminals, he proceeds to associate laws, punishments and meritocratic appointment with the Zhou.[112]
With Sima Qian's categories already popular by their time, Imperial Archivists Liu Xiang (77–6BCE) and Liu Xin (c.46bce–23ce) placed Han Fei's figures. With Sima Qian's Fajia already characterized in a partisan way, they placed Han Fei's figures under it in the Imperial Library. They associate the schools with ancient departments, with the fa-school "probably originating in the department of prisons", whose descendants, then, failed to punish criminals. Fajia becomes a category of texts in the Han state's own Book of Han (111ce), with Dong Zhongshu's argument included in its Chapter 56 Biography.[113]
The fajia are strict and have little kindness, but their divisions between lord and subject, superior and inferior, cannot be improved upon… Fajia do not distinguish between kin and stranger, or differentiate between noble and base; all are judged as one by their fa. Thus they sunder the kindnesses of treating one’s kin as kin and honoring the honorable. It is a policy that could be practiced for a time, but not applied for long. But for honoring rulers and derogating subjects, and clarifying social divisions and offices so that no one is able to overstep them—none of the Hundred Schools could improve upon this.
Shiji120:3291
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