Legalism

In Chinese history, Legalism (Chinese: 法家; pinyin: Fǎjiā; Wade-Giles: Fa-chia; literally "School of law") 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.E. to about the third century B.C.E.). It is actually rather a pragmatic political philosophy, with maxims like "when the epoch changed, legalism is the act of following all laws ," and its essential principle is one of jurisprudence. "Legalism" here can bear the meaning of "political philosophy that upholds the rule of law", and is thus distinguished from the word's Western sense.

The school's most famous proponent and contributor Han Fei (韓非) believed that a ruler should govern his subjects by the following trinity:

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 punish accordingly those who dare to break them. Thus it is guaranteed that actions taken are 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.
2. Shu (術 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 法 or laws.
3. Shi (勢 shì): legitimacy, power or charisma. It is the position of the ruler, not the ruler himself, that holds the power. Therefore, analysis of the trends, the context, and the facts are essential for a real ruler.

Introduction

Legalism was the central governing idea of the Qin Dynasty, culminating in the unification of China under the 'First Emperor' (Qin Shi Huang). Legalist thought has often been compared to the work of Italian political writer Niccolò Machiavelli and the Arthashastra of Kautilya.

Legalism was first created by Shang Yang. Hired by the then Duke Xiao of Qin, he was task to change Qin from a backward weak state to an advanced and strong one. Shang Yang made many reforms to the state, one of the most important ones would be the advance of rank, the stripping of nobility rank and laws to make both the aristocrat and common people equal. Such reform had been the advocate of a centralized system. The state of Qin may had been the first state in the world to have a central government.

Law was used to create paradox by which the Emperor's agents could then pick and choose what law would be enforced. The "art" (Shu) was in the clever excess of laws created, which, though individually simple and clear, created a framework where mere accusation would find most anyone of any station in violation of something, with their innocence difficult if not impossible to prove. Here the "special tactics" came to bear, as selective enforcement ultimately occurred at the pleasure of the Emperor. Power was expressed as much by prosecution of the law as by selection of which law to prosecute, and by the absence or cessation of prosecution due to yet another contravening law. Here the mystery of the Emperor's pleasure was communicated to the masses. Even those who wielded power on behalf of the Emperor were subject to the pernicious web woven under this doctrine of Legalism. The motivation of the Emperor was hard to know, as submission to one law readily brought one into conflict with another. Thus, only the Emperor was perfect. The controlling advantage was ever in the hands of the Emperor, who would always control the choice (or creation) of the final law to be brought to bear upon any situation.

The role of the ruler

Primarily members of the ruling class, the Legalists emphasized that the head of state was endowed with the "mystery of authority” (勢 shì), and as such his decisions must always command the respect and obedience of the people. The emperor’s very figure brought legitimacy. In emphasizing the power of ruler-ship, Legalists such as Shen Dao (ca. 350-275 B.C.E.) and Shen Buhai sought to devalue the importance of the charismatic ruler. Skillful rulers hid their true intentions and feigned nonchalance. To ensure that all of his words were revered, the wise ruler kept a low profile. Thus, theoretically, by cloaking both his desires and his will, the Emperors checked sycophancy and forced his subject to heed his dictates. 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 (the Legalist scholar most admired by the First Qin Emperor, Qin Shihuangdi) demanded more of the wise ruler. A good leader, by Han Feizi's standards, 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 also understood the importance of strictness over benevolence. Although the ruler was expected to be paternalistic, the Legalists emphasized that being too kind would spoil the populace and threaten the state's internal order. Interestingly, according to Han Grand Historian Sima Qian (ca. 145-86 B.C.E.), while the First Qin Emperor hid himself from the rest of the world (perhaps due to a desire to attain immortality) and thus maintained a low profile, he did not necessarily follow all of the Legalists’ advice on the role of the ruler.

The role of ministers in Legalist thought

To aid the ruler and help prevent misgovernance, Shen Buhai – a minister from the state of Han for fifteen years - formalized the concept of 術 (shù, “methods”), or the bureaucratic model of administration that served to advance the ideal Legalist ruler’s program. To the Legalists, the intelligent minister was the ruler's most important aide. Whereas the minister’s duty was to understand specific affairs, the ruler was responsible for correctly judging ministers’ performances. Stressing that ministers and other officials too often sought favours from foreign powers by abusing their positions, Han Feizi urged rulers to control these individuals by the two handles of punishment and favour. Officials were required, through fear, to ensure that ministers' accomplishments were neither greater than nor inferior to the assigned undertaking. 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. Thus, in Legalist theory, ministers and other officials were prevented from performing some other official's duties and were punished if they attempted to blind the ruler with words or failed to warn the ruler of danger. One consequence of this situation was that the ministers could always be held accountable for royal misadventures while the ruler’s name was never to be tarnished. By emphasizing performance, however, over sophistry, the Legalists hoped to eliminate bureaucratic corruption and intrigues amongst the officialdom through fear.

The purpose of law

If the laws supported by the Legalists were meant to support the state, the king, and his military. They were also reform-oriented and innovative. In theory, the Legalists believed that if the punishments were heavy and the law equally applied, neither the powerful nor the weak would be able to escape state control. The Legalists especially emphasized pragmatism over precedence and custom as the basis of law. Guided by Legalist thought, the First Qin Emperor would weaken the power of the feudal lords (although not completely as previously discussed), divide the unified empire into thirty-six administrative provinces, and standardize 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. Likewise, all documents in the empire had to have recorded the year they were written, the scribe who copied them, and up to the exact hour of delivery. Accepting Shang Yang’s earlier emphasis on the standardization of weights and measures, the First Qin Emperor would also accept Shang Yang’s philosophy that no individual in the state should be above the law (by ensuring harsh punishments for all cases of dissent) and that families should be divided into smaller households. While there is reason to doubt Sima Qian’s claim that the First Qin Emperor did in fact divide households into groups of ten, certainly the other examples of standardization and administrative organization undertaken by the First Emperor reflect the importance of Legalist thought in Qin law. Based on promoting the interests of the state, Qin 法 served as a vehicle to both control the populace and eliminate dissent.

Legalism and individual autonomy

The Legalist philosophers emphasized the primacy of the state over individual autonomy. The lone individual had no legitimate civil rights and any personal freedom had to strengthen the ruler. Han Feizi, in particular, would be very caustic towards the concept of individual rights. Fundamentally, the Legalists viewed the plebeian (common people of lower class) and his actions as evil and foolish.

However Legalism allowed people to gain in rank, e.g. soldiers were allowed to gain in rank by the number of heads collected. The soldier may even gain noble rank. In contrast, some other states allow only the well-connected to gain higher ranks.

Consequently, 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 the populace never escape punishment. The Qin dynasty used the people, for example, to maintain vigilant mutual surveillance over one another under threat of death.

This intrastate realpolitik would end up devouring the Legalist philosophers themselves. Shang Yang, in advocating the state’s right to punish even the heir-apparent’s tutor, would run afoul of the future King Huiwen of Qin (r. 338-311 B.C.E.). Whereas at one point, he had the power to exile his opponents (and, thus, eviscerate individual criticism) to border regions of the state, he died when torn into pieces by chariots. Similarly, Han Feizi would end up being poisoned by his envious former classmate Li Si, who in turn would be killed (under the law he had introduced) by the violent Second Qin Emperor he had helped to enthrone.

Power politics between the philosophies

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.

Decline

In later dynasties, Legalism was discredited 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 have merged with mainstream Confucianism and still have a role to play in government.The philosophy of imperial China can be described as Confucianism externally and legalism internally儒表法裏, i.e. sugarcoating the harsh legalism ideas with a surface of Confucianism. Although during the Sui and Tang dynasty, buddhist influence were also included externally.

More recently, Mao Zedong, who had some knowledge of ancient Chinese philosophy, compared himself with Qin Shi Huang^{[citation needed]} and publicly approved of some Legalist methods. One such method approved in the eighties under Deng Xiaoping administration is the reward and punishment, which has increased the size of the Beijing government in the process. However, since the 1990s the related concept of the rule of law has gained currency.

Related figures

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) were strict Legalists.

Related philosophies

• Confucianism
• Meritocracy
• Mohism
• Platonism
• Realism (Political philosophy)

Contrasting philosophies

• Taoism
• Stoicism

Korean Legalism

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 closely related to Chinese Legalism, but sometimes distinguished because of some Korean's distaste for what they see as Chinese use of Legalism to legitimize Chinese imperialism.

References

ISBN links support NWE through referral fees

• 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: 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: Probsthain, 1928.
• Graham, A.C., Disputers of the TAO: Philosophical Argument in Ancient China (Open Court 1993). ISBN 0-8126-9087-7
• Pu-hai, Shen. “Appendix C: The Shen Pu-hai Fragments.” Shen Pu-hai: A Chinese Political Philosopher of the Fourth Century B.C.E. Translated by Herrlee G. Creel. Chicago: The University of Chicago Press, 1974.
• Qian, Sima. Records of the Grand Historian, Qin Dynasty. Translated by Burton Watson. New York: Columbia University Press, 1993.
• Schwartz, Benjamin I. The World of Thought in Ancient China. Cambridge, MA: The Belknap Press of Harvard University Press, 1985.
• Watson, Burton, trans. Han Fei Tzu: Basic Writings. New York: Columbia University Press, 1964.

External References

• "Chinese Legalism: Documentary Materials and Ancient Totalitarianism"
• "The Book of Lord Shang"

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