Legalism


Legalism (Chinese: 法家; pinyin: Fǎjiā; Wade-Giles: Fa-chia; literally "School of law") was one of the four main schools of thought (Hundred Schools of Thought) during the Spring and Autumn Period and the Warring States Period (near the end of the Zhou dynasty, from about the sixth century B.C.E. to about the third century B.C.E.), along with Confucianism, Daoism, and Buddhism. It was a pragmatic political philosophy which upheld the “rule of law,” as an ethical system and a means of organizing society.

Contents

Legalists argued for “rule by law” and criticized Cofucianist “rule by virtue.” Legalists held utilitarian views of humanity and received support from newly emerging middle-class land owners. Legalist thought was compiled from existing ideas and systematically formulated by Han Fei (韓非). It provided a theoretical foundation for the centralist rule of the Qin Dynasty. Legalism as a political thought, however, lacked a mechanism to limit and check the power of despotic monarchs, and it was very different from modern rule by law.

Three components of legalism: Han Fei

The school's most famous proponent and contributor, Han Fei (韓非), a disciple of the Confucian philosopher Xun Xi, synthesized the ideas of several earlier legalist thinkers, Shang Yang, Shen Buhai, and Shen Dao, on authority and legitimacy to create a political theory based on three principles:

  1. Fa (法 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 severely punish those who dare to break them, guaranteeing that the actions taken are systemically predictable. The system of law runs the state, rather than the ruler himself. If the law is successfully enforced, even a weak ruler will be strong.
  2. Shu (術 shù): Method, tactic, or art. A bureaucratic administration under the control of the ruler enforces the laws and performs the task of running the state. The ruler employs special techniques to ensure that administrators carry out their duties and do not abuse their positions. The emperor maintains a balance of power by remaining aloof and concealing his personal intentions, so that the laws (法) remain the primary model of behavior.
  3. Shi (勢 shì): Legitimacy, power, or charisma. It is the position of the ruler, not the ruler himself, that holds power and authority. A ruler should practice “non-action,” “emptiness,” and “acquiescence” in order to allow the natural order of things to rule.

Origins and development

Shang Yang

Legalism was the central governing idea of the Qin Dynasty, culminating in the unification of China under the "First Emperor," Qin Shi Huang (reigned 247-210 B.C.E.). Legalism originated with the administrative reforms of Shang Yang (商鞅; Wade-Giles: "Kung-sun Yang") (d. 338 B.C.E.), who was hired in 361 B.C.E., by Duke Xiao of Qin, to transform the weak and backward Qin into a strong and progressive state. Borrowing from the reforms of other Chinese states, Shang Yang enacted sweeping changes. He enacted the Book of Law (Fajing, 法经), written by Li Kui in 407 B.C.E., and added a rule giving anyone who was aware of a crime, and did not report it to the government, the same punishment as the perpetrator. Shang Yang believed in the rule of law and considered loyalty to the state to be above loyalty to the family. He stripped the nobility of their rank and their land, making the aristocrats equal with the common people, and set up a centralized government. Confucian books were burned in an effort to reduce the influence of Confucian thought. The army was divided into twenty military ranks, awarded according to success in battle. To remedy a shortage of labor, Shang Yang encouraged cultivation of unsettled lands and wastelands, discouraged commerce, and allowed immigration from other states. A new standardized system of land allocation and taxation was established. Shang Yang’s reforms were so effective that the Qin state quickly surpassed its neighbors and was able to conquer all of China, uniting the country for the first time and ushering in the Qin dynasty.

Shang Yang is credited by Han Feizi with the creation of two theories;

  1. Ding Fa (定法; fixing the standards)
  2. Yi Min (一民; treating the people as one)

Shen Dao and Shen Buhai

The method by which a ruler exercises his control, or shu (術 shù), was based on a Daoist view of nature as an amoral force. In contrast to Confucianism, which legitimizes a ruler’s authority based on superior moral character and wisdom, legalism attributed authority to the historical position of the ruler. Shen Dao( 慎到, c. 350 B.C.E.-275 B.C.E.), a Chinese philosopher from Zhao whose writings were referenced in the works of Han Fei and Zhuang Zi, argued that authority arises and is sustained due to the nature of actual circumstances, rather than in accordance with an abstract set of moral values. According to Shen Dao, Things simply flow based on the natural course of The Way (the Tao), and do not arrange themselves so as to conform to an ethical system.

Shen Buhai ( 申不害, d. 337 B.C.E.), chief minister of Han from 351 to 337 B.C.E., is credited with writing the Shenzi and created a system of administration which was incorporated into legalism. Shen was chiefly concerned with government administration through the use of bureaucracy. His system required a strong ruler at the center. The ideal ruler should remain distant from his officials, keeping his innermost convictions secret and maintaining an independence of thought; the ruler should be the loneliest person in the world. Shen Buhai perceived the greatest threat to a ruler's power coming from within. He believed that threats from powerful, independent ministers to usurp power were more dangerous than threats from external forces. Shen championed the concept of Shu (術 administrative methods/techniques), advocating a system for maintaining checks against the power of individual officials, and equality among the officials.

Shen emphasized the importance of finding the right person to fill a position (xingming 刑名), and evaluated officials based on skill, achievement, and seniority. He believed that rulers maximized power by exercising it as little as possible. He also encouraged rulers to limit their activities, leaving the details of administration to capable ministers.

Xun Zi, Han Fei, and Li Si

Xún Zǐ or Hsün Tzu (荀子; b. Zhao c.310 – 237 B.C.E.) was a Chinese philosopher who believed that man is prone to evil dispositions, and that ethical norms had been invented to control them. Though he was associated with the Confucian school, the political and social upheavals around him caused Xun Zi to develop a pessimistic view of human nature. Two disciples of Xún Zǐ, Han Fei (韓非) (c. 280-233 B.C.E.) and Li Si (c. 280-208 B.C.E.) developed Xun Zi's philosophy into the doctrine embodied by the School of Law or Legalism.

Unlike the other famed philosophers of the time, Han Fei (韓非) was a member of the ruling family of Han; in this context, his works have been interpreted by some scholars as being directed to his cousin, the King of Han. Han Fei's entire recorded work is collected in the fifty-five chapters of Han Feizi. Han Fei's philosophy borrowed Shang Yang's emphasis on laws, Shen Buhai's emphasis on techniques, and Shen Dao's ideas on authority and legitimacy. The other main source for his political theories was Lao Zi's Taoist work, the Tao Te Ching, which he interpreted as a political text, and on which he wrote a commentary (chapters 20 and 21 in his book, Han Feizi). He saw the Tao as a natural law that everyone and everything was forced to follow. Parallel to this, he believed that an ideal ruler made laws, like an inevitable force of nature, that the people could not resist.

Han Fei’s philosophy strongly influenced the first King of Qin and the first emperor of China, Qin Shi Huang, becoming one of the guiding principles of the ruler's policies. After the early demise of the Qin Dynasty, Han Fei's philosophy was officially vilified by the following Han Dynasty. Despite its outcast status throughout the history of imperial China, Han Fei's political theory continued to heavily influence every dynasty afterward, and the Confucian ideal of a rule without laws was never again realized.

Li Si, like Han Fei (韓非), was a disciple of Xunzi (荀子). He was the influential Prime Minister (or Chancellor) of the feudal state and later of the dynasty of Qin, between 246 and 208 B.C.E. A staunch believer in a highly bureaucratic system, Li Si is considered to have been central to the efficiency of the Qin state and the success of its military conquest. A powerful minister, he was central to the state's policies, including those on military conquest, draconian centralization of state control, standardization of weights, measures, and the written script, and persecution of Confucianism. He was also instrumental in systematizing standard measures and currency in post-unified China, and helped to standardize the written Chinese language by promulgating as the imperial standard the small seal script which had been in use in the state of Qin. One of Li Si's most famous prose works, In Advice Against the Driving Away of Guest Immigrants (諫逐客書, Jian Zhu Ke Shu), was written in reaction to a vehement Qin edict to drive away all foreign immigrants from Qin territory.

According to the Shi Ji, Li Si was responsible for the death of Han Fei. A minor prince in the state of Han, Han Fei was an excellent writer whose essays reached the attention of the king of Qin. When Qin made war on Han, Han Fei was dispatched as a diplomatic envoy to Qin. Li Si, who envied Han Fei's intellect, persuaded the Qin king that he could neither send Han Fei back (as his superior ability would be a threat to Qin) nor employ him (as his loyalty would not be to Qin). As a result, Han Fei was imprisoned, and Li Si convinced him to commit suicide by poisoning. In 208 B.C.E., Li Si himself died in a gruesome manner after involving himself in a power struggle among successors to the throne.

Legalism

Han Fei’s philosophy centered on the ruler, who firmly controls the state with the help of three concepts: his position of power (勢, Shi); certain techniques (術, Shu), and the laws (法, Fa). The legalist concept of human nature is that it is innately self-interested and that everyone acts according to one principle: avoiding punishment while simultaneously trying to achieve gains. Thus, the law must severely punish any unwanted action, while at the same time rewarding those who follow it.

The legalist philosophy of governing by “fa,” “shi,” and “shu” was a new model of socio-political organization, developed in response to the disintegration of the Zhou feudal order and the political struggles of the Warring States period. Legalists justified such a radical transformation in the name of historical relativism.

There are as many situations as there are generations…and situations change, so the measures change (Han Feizi, 49).

Role of the ruler (Shì, 勢)

Legalists emphasized that the head of state was endowed with the "mystery of authority” (勢 shì), and that his decisions must always command the respect and obedience of the people. Shen Dao and Shen Buhai devalued the importance of the charismatic ruler, and instead emphasized his position as the source of authority. The aim of legalism was to establish a “natural” and automatic polity that would be in accord with dao (the way the natural world operates). A ruler should therefore embody dao by practicing "non-action," "emptiness," and 'quiescence," in order to allow the natural flow of events. The ruler should not act, but let his subordinates act and be accountable for the consequences of their actions. The position of the ruler is comparable to the center point of a balance, or scale; the center point does not move, but is aware of which side of the scale is heavier than the other. The ruler should hold himself aloof, and use the “two handles” of reward and punishment, or power over life and death, to control his people.

A skillful ruler hides his true intentions and feigns nonchalance, surrounding himself with mystery so that his words are revered and respected. By not revealing his true feelings, the ruler keeps his officials constantly uncertain of their position and anxious to do their best. While Shang Yang (the Prime Minister of Duke Xiao of Qin) would allow rulers to listen to musical instruments rather than focus on foreign policy, Han Feizi had a much higher standard for the ideal leader. A good leader must not only accept the advice of loyal ministers when shown to be in error, but must also extend courtesy to those beneath him and not be too avaricious. The adept ruler must also understand the importance of strictness over benevolence. Although the ruler was expected to be paternalistic, Legalists emphasized that being too kind would spoil the populace and threaten the state's internal order.

Fa (法 fǎ), law or principle

Legalists especially emphasized pragmatism, over precedence and custom, as the basis of law. Laws were meant to be objective, impersonal and impartial standards for human behavior. Their purpose was to support the state, the king, and his military by harmonizing individual behavior with the public interest. Legalists believed that if the punishments were heavy and the law applied equally to all, neither the powerful nor the weak would be able to escape state control. The state could re-mold human behavior by the application of prescriptive standards and penal law (fa). The effectiveness of laws depended on their being issued from an impersonal, institutionalized position of rulership, and having the tacit support of the people.

Such an excess of laws was created that, though each law was simple and clear in itself, a contradictory law could always be found. Submission to one law readily brought a person into conflict with another, so that there were always grounds to accuse almost anyone, of any social position, of breaking one of them. The ruler and his administrators had the ultimate authority to select which laws to prosecute, and when to cease prosecution because one law was contravened by another; in this way they maintained control over their subordinates.

Guided by Legalist thought, the First Qin Emperor weakened the power of the feudal lords, divided the unified empire into thirty-six administrative provinces, and standardized weights and measures and the writing system. Reflecting Legalist passion for order and structure, Qin soldiers were only mobilized when both halves of tiger-shaped tallies (one held by the ruler and the other by the commanding general) were brought together. All documents in the empire had to include a record of the year when they were written, the scribe who copied them, and the exact hour of delivery. The First Qin Emperor ensured that no individual in the state should be above the law by imposing harsh punishments for all cases of dissent. A double tax was imposed on households where more than one son resided, forcing clans and large family groups to break up into smaller households.

The role of ministers (shù, 術)

Shen Buhai formalized the concept of shù ( 術, “methods”), a bureaucratic model of administration to aid the ruler and help prevent misgovernance. In legalism, the intelligent minister was the ruler's most important tool of governance. The minister’s duty was to understand and regulate specific affairs; the ruler was responsible for correctly judging ministers’ performances. The ruler must master the technique of comparing word (ming) and performance (xing).

Stressing that ministers and other officials too often sought favors from foreign powers by abusing their positions, Han Feizi urged rulers to control these individuals by the two “handles” of punishment and favor. Officials were required to ensure that ministers' accomplishments were neither greater than nor inferior to their assigned duties. According to the eminent Sinologist Robin Yates, newly discovered Qin legal codes show that officials were required to correctly calculate the exact amount of labor expected of all artisans; if the artisan was ordered to perform either too much work or too little work, the official would be held accountable. In legalist theory, ministers and other officials were prevented from performing another official's duties and were punished if they attempted to deceive the ruler with words or failed to warn the ruler of danger. One consequence of this was that the ministers could always be held accountable for royal misadventures while the ruler’s name was never tarnished.

Legalism and individual autonomy

Legalist philosophers emphasized the primacy of the state over individual autonomy. The individual had no legitimate civil rights and any individual actions should be directed towards strengthening the state and supporting the ruler. In general, the lower classes were considered to have evil and foolish tendencies that needed to be controlled. According to Shang Yang's The Book of Lord Shang, the people themselves wanted a ruler to generate order. Social cohesion in the legalist state mandated that violators never escape punishment.

Legalism allowed individuals to rise in rank, based on merit and performance. Soldiers were evaluated by the number of heads they collected in battle, and a soldier could even rise to the status of a noble. Government administrators were to be carefully examined and appointed according to their abilities, and granted favors or punished according to their performance.

Decline

Most Chinese philosophers and political thinkers have had negative views of legalism, associating it with totalitarianism. Many Chinese scholars believe that the reaction against legalism caused Chinese Imperial politics to emphasize personal relationships and morality rather than the rule of law. Most of the Chinese historical records were written by Confucian scholars, who were persecuted under the Qin, and may therefore present a biased view.

Legalism was discredited by later dynasties and ceased to be an independent school of thought. However, both ancient and modern Confucian observers of Chinese politics have argued that some legalist ideas merged with mainstream Confucianism and still play a role in government. The philosophy of imperial China can be described as Confucianism externally (along with Buddhism during the Sui and Tang dynasties) and legalism internally (儒表法裏).

Korean legalism

The history of legalism in Korea 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 concept of legalism as a tool of governance. The ideas are closely related to Chinese legalism, but are sometimes distinguished because of some Koreans' distaste for what they see as Chinese use of legalism to legitimize Chinese imperialism.[1]

Notes

  1. Song Dae-keun, Use Legalism to Govern the Nation, Dong-a Ilbo. Retrieved May 5, 2008.

References

  • Barbieri-Low, Anthony, trans. The Standard Measure of Shang Yang (344 B.C.E.). 2006.
  • Creel, H.G. “The Totalitarianism of the Legalists.” Chinese Thought from Confucius to Mao Tsê-tung. Chicago, IL: The University of Chicago Press, 1953.
  • Duyvendak, J.J.L., trans. The Book of Lord Shang: A Classic of the Chinese School of Law. London: The Lawbook Exchange, Ltd., 2003 (original 1928). ISBN 978-1584772415
  • Graham, A.C. Disputers of the TAO: Philosophical Argument in Ancient China. Open Court, 1993. ISBN 0812690877
  • Schwartz, Benjamin I. The World of Thought in Ancient China. Cambridge, MA: The Belknap Press of Harvard University Press, 1985. ISBN 0674961900
  • Shen, Pu-hai. “Appendix C: The Shen Pu-hai Fragments.” Shen Buhai: A Chinese Political Philosopher of the Fourth Century B.C.E. Translated by Herrlee G. Creel. Chicago, IL: The University of Chicago Press, 1974. ISBN 0226120279
  • Sima, Qian, Records of the Grand Historian, Qin Dynasty. Translated by Burton Watson. New York, NY: Columbia University Press, 1993. ISBN 0231081685
  • Watson, Burton, trans. Han Fei Tzu: Basic Writings. New York, NY: Columbia University Press, 1964. ISBN 0231086091

External links

All links retrieved July 28, 2014.

General philosophy sources

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