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Legalism (Chinese philosophy)

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Fajia (Chinese: 法家; pinyin: fǎjiā), or the School of fa (laws, methods), often translated as Legalism,[1] is a school of mainly Warring States period classical Chinese philosophy. Often interpreted in the West along realist lines, its members works contributed variously to the formation of the bureaucratic Chinese empire, and early elements of Daoism. The later Han takes Guan Zhong as forefather of the Fajia. Its more Legalistic figures include ministers Li Kui and Shang Yang, and more Daoistic figures Shen Buhai and philosopher Shen Dao,[2] with the late Han Feizi drawing on both. Later centuries took Xun Kuang as a teacher of Han Fei and Li Si.[3] Succeeding emperors and reformers often followed the templates set by Han Fei, Shen Buhai and Shang Yang, but the Qin to Tang were more characterized by their traditions.

Legalism
Statue of the legalist Shang Yang
Chinese法家
Literal meaningSchool of law
Transcriptions
Standard Mandarin
Hanyu PinyinFǎjiā
Bopomofoㄈㄚˇ ㄐㄧㄚ
Wade–GilesFa3-chia1
Tongyong PinyinFǎ-jia
IPA[fà.tɕjá]
Yue: Cantonese
Yale RomanizationFaatgā
Jyutpingfaat3 gaa1
IPA[fat̚˧ ka˥]

Though Chinese administration had no single origin, with a major influence by the Han dynasty, grand chancellor Shen Buhai likely played a key role in the development of the merit system, and could be seen as its founder. With formative influence for the Qin and Chinese law, Shang Yang reformed the peripheral Qin state into a strongly centralized, powerful kingdom, ultimately unifying China in 221 BCE. Largely responsible for their synthesis as a school, the Han Feizi also contains some of the earliest commentaries on the Daodejing. Sun Tzu's Art of War recommends Han Fei's concepts of power, technique, inaction, and impartiality, punishment and reward.

Masters Texts's category

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Book of Han or Hanshu, carved in the Ming dynasty, in Tian Yi Chamber Library collection

One of Sima Tan's (165–110 BCE) six schools of thought discussing approaches to governance,[4] Fajia ("fa family") emphasizes administrative protocols that ignore kinship and social status, treating everyone equally and thereby elevating the ruler above humanity.[4] Sima Tan praises Fajia for “honoring rulers and derogating subjects, and clearly distinguishing offices so that no one can overstep [his responsibilities]." He criticizes Fajia as strict with little kindness, as a one-time policy that could not be constantly applied.[5]

Imperial Archivists Liu Xiang (77–6BCE) and Liu Xin (c.46bce–23ce) would use Fajia as a category of Masters Texts in the Han dynasty imperial library, becoming a major category in Han dynasty catalogues, namely the Han state's own Book of Han (111ce). Alongside Shang Yang, Shen Buhai, Shen Dao and Han Fei, six other lost texts were included under it.[6]

Included by Ban Gu in the Hanshu, Liu Xin adds additional strengths and weaknesses to the schools categories. Fajia are said to "make reward dependable and punishment inescapable, as a support to control by ceremony." Fajia are criticized as rejecting teaching and benevolence, concern for others, and aiming to perfect government relying only on punishment and law, inflicting corporal punishment even on closest kin, and demeaning mercy and generosity.[7]

Although Xun Kuang criticized Shen Dao as "obsessed with fa", and Sima Qian considered Shang Yang successful in "turning the Qin people into law-abiding subjects" (Pines), the term Fajia or "fa family" itself likely only meant "law abiding families" in Mencius's time. No one had used it as an ideological term for himself or his opponent. Its rare term might have meant something like "methods expert in economic affairs" in the context of the Guanzi before Tan.[8]

Dating

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See also: [[:Guanzi, Gongsun Hong]]
 
A late 19th century edition of the Hanfeizi by Hongwen Book Company
 
Early a remote backwater west, the Qin's early conquests include the isolated Sichuan Basin, and territories from Li Kui's Wei state.

Early a remote backwater to the west, Shang Yang's reforms propelled the Qin state to power. But central China was likely not familiar with him or the Qin state's Book of Lord Shang's until just before imperial unification, and similar ideas on power only develop late in the work.[9] The late Xun Kuang was familiar with Shen Buhai, Shen Dao, and the Qin, but still seems unaware of Shang Yang.[10] With evidence of direct influence lacking, Shen Buhai can speculatively be compared with the older neighboring Li Kui, or the even older Confucian Zichan as all seeking more meritocratic government.[11]

As chancellors of neighboring states, Shang Yang’s and Shen Buhai’s doctrines would have intersected by the Qin dynasty, and the late Han Feizi is Shang Yang's first reference outside the Book of Lord Shang. The Han Feizi, associated with Han Fei, would suggest that the laws and methods of Shang Yang and Guan Zhong, with their associated works, may have circulated at that late time.[12] Presenting their ideas together, Chapter 43 likely led to an association of Shang Yang and Shen Buhai,[13] later contributing to a Legalist interpretation of Fajia.{{sfn|Jiang|2021|p=235}

Taking Shang Yang as representative, Han Fei considered fa (standards) necessary, as including law, decrees, reward and punishment, as well as fa administrative standards as controlled by the ruler, representative of his own state's Shen Buhai. The latter he terms (shu) administrative Method or Technique,[14] defined as examining the abilities of ministers, appointing candidates in accordance with their capabilities, and holding ministerial achievements (xing "forms") accountable to their proposals (ming "names").[15] Following the Han Feizi, Shang Yang, Shen Buhai and Han Fei were often identified under it's administrative practice of Xing-Ming ("form and name"), explained under Shu technique.[16]

Their combined figures might have had an influenced on the Qin dynasty. But a souring association of them with the Qin only developed over the course of the Han dynasty.[17] Jia Yi criticized Shang Yang In the reign of Emperor Wen, but along with propriety and righteousness, himself advocates fa laws (models), ranks and the execution of usurpers.[18] Sima Qian associated their several figures with the Qin dynasty,[19] arguing for Daoism in the reign of Emperor Wu.[20] Dong Zhongshu glosses over them, himself advocating law, punishment and meritocratic appointment.[21] By the later Han, scholars less knowledgeable than Liu Xiang were not always aware that Shen Buhai and Shang Yang were different. With the meaning of Xing-Ming gradually lost as punishment, they become "the school of punishments."[22]

Potentially influential for the founding of the Imperial Examination,[23] according to Han Fei and the Huainanzi, law was disorganized in Shen Buhai's newly formed Hann state. No Han or earlier text individually connects him with penal law, but only with control of bureaucracy,[24] and by contrast appears to have opposed penal punishment.[25] His administrative ideas would be relevant for penal records and practice by the Han dynasty, but can still be seen in a fifth century work quoting Liu Xiang as a figure who advocated administrative technique, supervision, and accountability to abolish the punishment of ministers. Though often used together, the three were still individually influential in the Han dynasty.[26]

Legalists or Administrators?

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While the term Legalism has still seen some conventional usage in recent years, such as in Adventures in Chinese Realism, apart from its anachronism academia has 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 uses fa (standards) in the sense of law, Shen Buhai had fa (standards) in the administration, which Creel translated as method.[27][28] Han Fei and Shen Dao make some use of fa (standards) as akin to law, and some use of reward and punishment, but often use fa standards similarly to Shen Buhai: as an administrative technique. Shen Buhai uses fa (standards) to compare official's duties and performances, and Han Fei often emphasizes fa in this sense. With a particular quotation from the Han Feizi as example:[29]

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.

With Shang Yang said to be executed after the death of Duke Xiao of Qin. Although not abandoning his reforms, the Qin would abandon his harsh punishments, and ultimately his dominating focus on agriculture, and the Book of Lord Shang would seek to innovate broader means of "empowering the state", including standards (fa) for promotion. It contains some pre-imperial ideas about what an order based on law and bureaucracy might look like once established. Often presenting it's ideas in the context of the late Hann state that the work claims needs more law, inheriting Shang Yang's current at the end Warring States period, the Han Feizi aspires to a state with law, wealth and a powerful military at the end of the Warring States period. That the Han Feizi is not legislative suggests that component was still more theoretical and advocative.[30][31]

With one core originating in Shen Buhai, Han Fei's chapter 5 on Xing-Ming administration does include specific practical recommendations, such that the Waseda University edition divides it in half.[32] Correlating ministerial proposals and achievements as contracts, Xing-Ming is amongst be the work's most philosophically sophisticated arguments.[33] Although not a required component, Xing-Ming can also be considered its most detailed application of reward and punishment in connection with Chapter 7's The Two Handles.[34]

The work'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 (or has, by a law expert rather than Sinologist) be compared to a legislative rule of law inasmuch as it develops beyond purposes serving those of simply the ruler, 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.[35]

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.[36] Turning towards management, Chapter 25 of the Shangjunshu's so-called "Attention to law" advocates "strict reliance on law" (fa) mainly as "norms of promotion and demotion" to judge officials and thwart ministerial cliques, but not yet apparently having absorbed more complex methods of selection and appointment, still fell back on agriculture and war as the standard for promotion.[37]

Agriculture and War

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See also: Discourses on Salt and Iron

With the Book of Lord Shang emphasizing fa standards as law, and a predominantly penal legal reception by Han Fei and the Han dynasty, the early work of Sinologist Herrlee G. Creel accepted Shang Yang as Legalist, arguing Shen Buhai to be more administrative. But Shang Yang's program was broader than law; Han Fei elementalizes him under it.[38] Penal law aside, Benjamin I. Schwartz argued Shang Yang's primary program to be agriculture and war. Per Michael Loewe early ministerial recruitment occurred amidst Warring States period mobilization. Developing towards such offices as diplomats, early mobilization and recruitment was generally more focused simply on census and taxes, with the Book of Lord Shang's programs a more extreme primary example of the trend; with Han Fei quite later, essentially, the only remaining early work of it's kind.[39]

Fa law can be considered a first principle of the Shangjunshu, but is aimed at general state power, and several chapter express anti-populist views.[40] The actual perspective expressed by the Book of Lord Shang would seem more that of seeking a rich, total state, with a dominating focus on agriculture and a powerful army, all geared for conquest. Acknowledging their bureaucratic contributions, Pine's work in the Stanford Encyclopedia of Philosophy prefaces a Shang Yang-Han Fei more along these lines. Shang Yang's institutional reforms can be considered unprecedented, and his economic and political reforms were "unqestionably" more important than his own personal military achievements. But he was as much a military reformer in his own time, even if not as renowned a general, and the Han also recognized him as a military strategist. A work under his name, possibly the same sans a few chapters, is also categorized under the Han Imperial Library's Military Books, subjection Strategists.[41]

With Shang Yang said to have reformed Qin law, the Book of Lord Shang does not believe that fa laws will be successful without "investigating the people's disposition." Pines takes Shang Yang's primary doctrine to be that of connecting people's inborn nature or dispositions (xing 性) with names (ming 名). The work recommends enacting laws that allow people to "pursue the desire for a name", namely fame and high social status, or just wealth if acceptable. Ensuring that these "names" are connected with actual benefits, it was hoped that if people are able to pursue these, they will be less likely to commit crimes, and more likely to engage in hard work or fight in wars.[42]

A figure in the Stratagems of the Warring States, although not the primary focus of his administrative treatise, Shen Buhai was also a military reformer, at least for defense, and is said to have maintained the security of his state.[43] Although Xun Kuang is probably accurate in considering Shen Dao to be focused on fa administrative standards,[44] as introduced by Feng Youlan he would most remembered in early scholarship 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. He only uses the term twice in his fragments.[45][46][47]

Sima Qian

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Sima Qian's Records of the Grand Historian or Shiji, 1982 printed edition by the Zhonghua Book Company.

Before Sima Tan, doctrines were only identified by texts named after Masters (Zi), with Daojia narrowed down to basic examples of Laozi and Zhuangzi in the Han dynasty. Not forming large scale, organized schools in the sense of the Mohists and Confucians, their traditions formed loose networks of master and disciple in the Warring States period. A.C. Graham takes the Zhuangzi as preferring a private life, while the Daodejing (Laozi) contains an art of rule. Xun Kuang does not perceive them as belonging to one school in his time, and lists their texts separately. Shen Dao and Laozi are adopted into the same history of thought in the Outer Zhuangzi.[48][49][50][51] Jia Yi uses them together in poetry,[52] but with the Huainanzi a main example of Zhuangzi influence in the Han, a Laozi-Zhuangi Daoism may otherwise be more accurate for the third century A.D,[53]

Although those listed under the fa-school arguably were focused on fa standards and methods,[54] the Han Feizi is also focused on Daoistic concepts wu wei and Dao. While some may have been earlier than the Daodejing (Laozi), it would almost go without saying that the Han Feizi would be influenced by it. But those who included commentaries on it in the work probably did not see two distinct schools. They probably saw works of rule;[55][56] traditionally included under Daojia, Sima Qian and Ban Gu describe Huang-Lao in these terms, and Sima Qian earlier claimed them for it apart from Shang Yang.[57] When the Confucians divided their texts out, it was probably not considered contradictory for them to be connected under multiple relatively fluid categories.[58]

Placing the biographies of Shen Buhai and Han Fei alongside Laozi and Zhuangzi, along with founding Han figures, Sima Qian earlier claimed Han Fei, Shen Buhai and Shen Dao as students of his same Huang-Lao philosophy, or "Yellow Emperor and Laozi Daoism",[59] which is traditionally included under Daojia.[53] Shang Yang is simply given his own chapter,[60] while Shen Dao is listed under the Jixia Academy.[61] Sima Tan appears to have described Daojia with "Huang-Lao" content in mind, incorporating a court of administrators likely based on Shen Buhai and Han Fei.[62][63] But, Sima Qian's chapter concludes:

The Way of Laozi esteemed emptiness, reacting to changes through non-action. Profound and subtle, his words are difficult to comprehend. Zhuangzi was unfettered by the Way and virtue, setting loose his discussions; yet his essentials go back to spontaneity. Master Shen (Buhai) treated the lowly as lowly, applying the principle of “names and substance.” Master Han (Fei) drew on ink line, penetrated the nature of matters, and was clear about right and wrong, but was extremely cruel and had little compassion. All these originated in the Way and its virtue (power, de), but Laozi was the most profound of them. Shiji 63: 2156[64]

Dividing Shang Yang from the others categorically, Sima Qian probably intends that they not be combined.[60] The Daodejing (Laozi), Zhuangzi and Sima Qian generally hold a negative view of fa laws, not much favoring "state activism in general". Sima Qian would seem to favor limitation of the bureaucracy,[65][64] but argues from a standpoint that needs have changed with the times.[66] One chapter of the Han Feizi criticizes "the doctrine of calmness and stillness", another "abstruse and subtle language".[67] Despite appropriative usages, the Daoistic early Han Huainanzi does not endorse Shen Buhai, glossing him as penal alongside Shang Yang and Han Fei.[68] Nonetheless, before the later Han the figures were not yet divided into two different schools.[69]

With a royal practice of wu wei reduced activity prominent in the early Han,[70] a key to Sima Qian's narrative would seem to be an identification of Han Fei with what he termed "Huang-Lao".[71] Sima Qian blames Li Si as purportedly combining Shen Buhai and Han Fei's doctrine, identified as Technique, with Shang Yang's doctrine of law, depicting Li Si as inflicting heavy taxes and abusing Shen Buha's doctrine to encourage the indolence and subservience of the Second Emperor. Although earlier Sinologists might treat them as belonging to the same "Legalism" category, Sima Qian, for his part, does not treat Han Fei the same as Li Si; framing the two as opponents, Han Fei is treated as a 'tragic figure'.[72] Han texts Shiji, Gongyang Zhuan, Yan tie lun, and Huainanzi instead depict Confucius as a Legalist, probably partly alluding to a cruel official under the Emperor Wu of Han.[73]

Huang-Lao and Mawangdui

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Even by the Records own timeline, a purported Huang-Lao might have emerged in the academies some decades after Shen Buhai's death, likely preceding a consolidated Daodejing (Laozi) or Zhuangzi. Discussing an administrative Way of government, he is as lacking in later metaphysical conceptions of the Daoist Dao. But apart from Shang Yang, a dividing line between them has never otherwise been entirely clear, and the other have been described them in syncretic, Daoistic terms. Termed "responsiveness through accommodation" by a commentary to the Shiji, Shen Buhai has ideas very similar to that of Non-action in the Guanzi, which was classed as Daoist long before it was classed as 'Legalist'. With Daosim poorly definable for the period, some western Sinologist modernly use the term Naturalism for the two; but Han Fei's is very brief.[74][75][76] Promoting "the ruler’s quiescence", Han Fei's Chapter 5 concerns a Way of the Ruler more than a Daoist way of life, and their figures are generally distinguished as politically focused.[77]

Although broader, this can describe "Huang-Lao" in general. Essentially 'interchangeable' with Daojia in the Shiji; despite distinctions, Huang-Lao is traditionally included under it.[78] The term "Huang-Lao" might be retrospective, and the Han Feizi's Daodejing commentaries chapters may be late additions. But the latter would seem to accurately describe the syncretism that became dominant by the Qin dynasty. As a view still espoused by Sinologist Hansen of the Stanford Encyclopedia of Daoism, a "Legalism" and Huang-Lao "Yellow Emperor Daoism" dominant by the Qin to early Han, would theoretically be borne out by the Huang-lao typified Mawangdui silk texts.[79] Although It remains a question how much of it might have been extant in Shen Buhai's time,[80] the Mawangdui and Guanzi regard fa administrative standards as generated by the Dao, theoretically placing it and some of the 'Fajia' within a "loosely Daoist" context;[81]

The Mawagndui texts can be argued to have been written in the early Han, when their political positions might have been more appealing, but Michael Loewe still placed its Jingfa text before Qin unification, and most scholars still took the others as having been at least Pre-han. The Yellow Emperor is a major figure in one of its texts. Amongst other strains of thought, the more metaphysical, but still politically oriented Boshu text more broadly includes contents bearing resemblance to Shen Buhai, Shen Dao and Han Fei, developing arguments more comparable to natural law than an old interpretation of legal positivism for Shang Yang and Han Fei.[82] If Huang-Lao did describe a self-conscious current, it would have been more of a tendency than a unified doctrine, with early "Huang-Lao" Han dynasty administrators named by Sima Qian, like Cao Shen, taking a more "hands off" approach after the fall of the Qin dynasty.[83]

Huang-Lao and Laozi

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More political than a typical reading of the Daodejing (Laozi), rather than "using" the work for politics, 'Han Fei' may be reading from an older, more political version. With the Mawangdui found from a member of the political class, Hansen argued these version should not be simply assumed as 'originals', interpreting Huang-Lao as an early, politically partisan variety of what would later, if not entirely accurately be termed Daoism.[84] If the authors of the Han Feizi were not all sincere in their Laoist beliefs, the work would still have served as a suitable critique of Confucianism and Mohism, i.e. for a more "realist" anti-Confucian than Daoist interpretation of the Han Feizi,[85] or for impartial laws and technique as purportedly bolstering the authority of a wu wei semi-inactive ruler.[86]

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. In contrast to it's modern representation, the Laozi of the early Mawangdui Silk Texts, and two of the three earlier Guodian Chu Slips, place political commentaries, or "ruling the state", first. The Han Feizi's political contemporaries likely read them in the same order. Arguably lacking in metaphysics, associated content instead possesses mythologies. Nonetheless, in contrast to all prior Ways, the Daodejing emphasizes quietude and lack as wu wei. A central concept of Daoism, together especially with their early Laozi, Shen Buhai, Han Fei, and so-called Huang-Lao Daoism emphasize the political usages and advantages of wu wei reduced activity as a method of control for survival, social stability, long life, and rule, refraining from action in-order to take advantage of favorable developments in affairs.[87]

The Han Feizi's late Daodejing commentaries are comparable with the Daoism of the Guanzi Neiye,[88] but otherwise utilizes the Laozi more as a theme for methods of rule. Although the Han Feizi has Daoistic conceptions of objective viewpoints ("mystical states"), if his sources had them, he lacks a conclusive belief in universal moralities or natural laws,[89] sharing with Shang Yang and Shen Dao a view of man as self-interested.[90] Advocating against manipulation of the mechanisms of government, despite an advocacy of passive mindfulness, noninterference, and quiescence, the ability to prescribe and command is still built into the Han Feizi's Xing-ming administrative method.[91] Its current is opposed with later, or otherwise more spiritual forms of Daoism as a practical state philosophy, not accepting a 'permanent way of statecraft', and applying the practice of wu wei or non-action more to the ruler than anyone else.[92]

Shen Dao and Zhuangzi

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Although there is no evidence that any follower of Zhuangzi called himself Huang-Lao, it contains three stories about the Yellow Emperor, one identifying him as a Master.[93] But early "Daoists" were likely not aware of their whole field.[94] With the Mawangdui silk texts lacking Zhuangzi influences, the main evidence of Zhuangzi influence in the Han dynasty is the Huainanzi.[51][50] Professor Tao Jiang more simply refers to Han Fei's Laozi influences as Laoist, only theorizing "Zhuangist"-type influences. He theorizes these as wariness by the Monarch of manipulation, retreating into wu wei isolation rather than Confucian-style moral education and cultivation. Hermits in the Zhuangzi retreat into isolation to avoid the chaos of the age.[95]

However, Benjamin I. Schwartz describes Shen Dao in terms of equanimity and a spirit of wu wei held in common with Zhuang Zhou and his own fellow academicians, with early Daoistic ideas found among later eclectics like Han Fei and Xun Kuang.[96] A representative figure of Han Fei's Chapter 40 on Shi 'situational authority' or Power, and likely a well known philosopher in his time from the Jixia Academy,[97] the Mohists and Shen Dao are placed by the Outer Zhuangzi as preceding Zhuang Zhou and Laozi.[98] Although likely not entirely accurate chronologically, Shen Dao does arguably bare resemblance to the earlier, Inner Zhuangzi. Early taking him as the Beginning of Daoist Theory, or Mature Daoism, Hansen still discusses him as part of the Stanford Encyclopedia of Daoism's theoretical model, under "Pre-Laozi Daoist Theory".[99][100]

For the Han Feizi too, Zhuangzi influences only exists as traces,[101] but one noteable example from chapter 40 incorporates a parable of a shield and spear salesman, which can also be found in a lost chapter from the Zhuangzi, quoted in the Tang dynasty. Although the Zhuangzi probably had a different argument, the Han Feizi likely contains more Zhuangzi than can be known.[102]

There was a man of Chu who sold shields and spears. He would hold them aloft saying, “My shields are so tough nothing can pierce them.” He would also hold up his spears and say, “My spears are so sharp, there is nothing they can't pierce.” Someone asked him, “What happens if I stab one of your shields with one of your spears ?" and he was unable to answer. Worthiness is something that cannot be forbidden by the power of position, but when the power of position is used as a Way of governing, there is nothing that it cannot forbid. So if one says that achieving good order requires both worthiness, which cannot be forbidden, and the power of position, which has nothing it cannot forbid, this is just like saying one has both all-penetrating spears and impenetrable shields. Hence, the fact that worthiness and the power of position are incompatible should be abundantly clear. (Sahleen trans., in Ivanhoe & Van Norden eds. 2001, 314)

Though espousing Laozi, Hansen theorized Han Fei's conception of the Dao to be based on that of Shen Dao's situational authority, with the Guanzi as similarly relevant. Shendao develops "the concept of the natural dao", or "actual course of events." "Abandoning knowledge" or conventional guidance, whatever the situation brings is the Dao (way), guiding human affairs, conventions, prescriptions and knowledge. Han Fei and Shen Dao's Dao might guide might good or evil kings, but emphasizing institutionalism (fa), the Han Feizi does not endorse the evil king, whose governance may be more complicated.[103] If some authors of the Han Feizi were familiar with the proto-Guanzi, as its references would at least suggest, the Guanzi holds that fa models control affairs, models find their origins in the exercise of power, and the exercise of power finds its origins in Dao.[104]

Changing with the times

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The people of Qi have a saying – "A man may have wisdom and discernment, but that is not like embracing the favourable opportunity. A man may have instruments of husbandry, but that is not like waiting for the farming seasons." Mencius

The early work of 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.[105] Earlier thought to be rare, in fact, a changing with times paradigm, or one of timeliness, "dominated" the age. Pines takes Shang Yang and Han Fei's more specific view of history as an evolutionary process as contrasting. It might have influenced an end of history view expressed by the Qin dynasty,[106] but would be a radical departure from the earlier ideas.[107]

Sinologist Hansen also once took the Dao of Shen Dao and Han Fei as aiming at what they took to be the '"actual" course of history'.[108] Stressing timeliness, Sima Tan says: "It (the dao or way) shifts with the times and changes in response to things", a view earlier found in Han Fei and Xun Kuang. Hong Kong professor Xiaogan Liu takes the Zhuangzi and Laozi (Tao te Ching) as more focused on "according with nature" than timeliness; followers of "Huang-Lao" can be theorized as defining the former according to the latter.[66]

Taking Shang Yang as inheriting from Li Kui and Wu Qi, despite anti-Confucianism in the Shangjunshu, professor Ch'ien Mu still considered that that "People say merely that Legalist origins are in Dao and De (power/virtue) [i.e., Daoist principles], apparently not aware that their origins in fact are in Confucianism. Their observance of law and sense of public justice are wholly in the spirit of Confucius' rectification of names and return to propriety, but transformed in accordance with the conditions of the age." In the ancient society, punishment by law would typically only apply to the people, while the nobles are only punished by ritual. But needs change with the times.[74]

Hu Shih took 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, 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:[109]

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.[110]

A.C. Graham

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In what A.C. Graham took to be a "highly literary fiction", as Pines recalls, the Book of Lord Shang's chapter 1, “Revising the laws,” 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 of the time as having no significance to the statesmen, even if they may be willing to conform the government to them.[111][5]

As a counterpoint, the Han Feizi and Shen Dao do still employ argumentative reference to 'sage kings'; the Han Feizi 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, considering the demarcation between public and private a "key element" in the "enlightened governance" of the purported former kings.[112]

Xing-Ming (introduction)

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See also: Huangdi sijing

Likely originating in the debates of the Neo-Mohists and school of names,[113][114] although Liu Xiang (77–6BCE) lists Shen Buhai under Fajia, he still considered his doctrine to be that of Xing-Ming, or "form" and "name". Sima Qian claimed Shen Buhai and Han Fei as favoring it, but rooted in Huang-Lao Daoism. Described as holding outcomes accountable to claims, Sima Qian glosses Shen Buhai, Shang Yang and Han Fei under it;[5] early connected with the school of names and Shen Buhai as Method, the term sometimes refers to a combination of Shang Yang and Han Fei by the Han. Despite it's contributions, the meaning of the term would ultimately be confused and lost in conflation with punishment (Xing 刑) by the time of the Western Qin, sometimes as early as the third century's Eastern Han.[115][116]

Sima Qian asserts the First Emperor as proclaiming its practice.[117] With Shen Buhai (and Han Fei still) extent in the early Han, evidentially, its basic idea intersect with Qin by the time late pre-imperial Lushi Chunqiu, from around 240 b.c., containing a "Daoist-Legalist" fusion comparable to Shen Buhai, Shen Dao, Han Fei, Guanzi and the Mawangdui Huangdi sijing. Typically termed "Daoist" for the early Han, the work demonstrates that a philosophy promoting the wu wei reduced activity of the ruler goes back to the Warring States period. The later Han historians simply classify the text as Zajia ("Syncretist") rather than Daojia or Fajia. With an example from the chapter "Ren shu":[118]

To follow is the method of the ruler; to act is the way of the minister. If (the ruler) acts, he will be troubled, if he follows, he will find peace. To follow the winter when it produces cold and the summer when it produces heat, why should the ruler do anything? Therefore to say: "The way of the ruler is to have no knowledge and no action, but still he is more worthy than those who know and act," that is to get the point.

An early bureaucratic pioneer, Shen Buhai was not so much more advanced as he was more focused on bureaucracy. Han Fei's discussion of Method-Technique (fa-Shu) provides a basic explanation for Xing-Ming, saying: "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." With Shen Buhai more conservatively surveying the ministers, their direct connection as a unified administrative function cannot be seen before Han Fei. Naming individuals to their roles as ministers (e.g. "Steward of Cloaks"), in contrast to the earlier Confucians, Han Fei at the end of the period holds ministers accountable for their proposals, actions and performance.[119] The late Warring States theories of Xun Kuang or the Mohists were still far more generalized.[120]

Xing-Ming (continued)

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With visible usages of Xing-Ming, the Han Feizi's chapter 5 Zhudao (道主) or "Way of the Ruler" incorporates Laozi and Shen Buhai in parallel style. Although Sima Qian does not claim it amongst his short list of chapters, he may have taken Han Fei as Huang-Lao based on its conception of the Dao, if the idea wasn't already established.[121]

Dao is the beginning of the myriad things, the standard of right and wrong. That being so, the intelligent ruler, by holding to the beginning, knows the source of everything, and, by keeping to the standard, knows the origin of good and evil. Therefore, by virtue of resting empty and reposed, he waits for the course of nature to enforce itself so that all names will be defined of themselves and all affairs will be settled of themselves. Empty, he knows the essence of fullness: reposed, he becomes the corrector of motion. Who utters a word creates himself a name; who has an affair creates himself a form. Compare forms and names and see if they are identical. Then the ruler will find nothing to worry about as everything is reduced to its reality. W. K. Liao. ch.5

The Mawangdui Jingfa regards Dao as generating fa standards,[81] and Sima Tan partly described the Daoist school based on what is "clearly" the idea of the Xing-Ming court. Shen Buhai, Han Fei, and Sima Qian's preferably 'inactive' ruler contracts an assembly of ministers, with Xing-Ming correlating job proposals (Ming "names", or verbal claims) with the Xing "forms" or "shapes" that they take. With early examples in Shen Buhai (Shenzi), several of the Mawangdui's texts bare resemblance to Han Fei's Chapter 5 discussion of Xing-Ming and its "brilliant (or intelligent) ruler", as do other eclectic Huang-Lao typified works, like the Guanzi, Huainanzi, and Sima Qian's Shiji.[122]

A.C. Graham took the Outer Zhuangzi as incorporating Xing-Ming, emphasizing benevolence over rewards and punishments,[123] although by its own statements the work favours self cultivation.[124] With their doctrines scarcely visible in the early Han outside the Mawangdui silk texts, according to the Shiji, the practice of Xing-Ming emerged again under the Daoistic Emperor Wen of Han and his trusted ministers, but "cautious, unobtrusive and firm", more akin to Shen Buhai than Han Fei. Attributed back to Shen Buhai, it becomes the term for secretaries who had charge of records in penal decisions by the Han dynasty, holding outcomes accountable to claims.[125][126]

School of names

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Prior Shen Buhai, Xingming likely originates earlier in the 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.'" Su Qin nonetheless took Gongsun Long's white horse paradox to be a Xingming administrative strategy. Other people were simply not intended to understand it.[127] Despite opposition to their paradoxes, the Han Feizi provides a white horse strategy: 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.[128]

But words and names are essential to administration,[129] and discussion on the connection between realities and their names were common to all schools in the classical period (500bce-150bce), as including the Mohists and posthumous categories of Daoists, Legalists and School of Names. Its earlier thinking was actually most developed by the Confucians, while later thinking was characterized by paradoxes. Shen Dao and Daoism question the premises of prior schools, in particular that of the Confucians and Mohists, representing an even higher degree of relativist skepticism. Nonetheless, with a narrow bureaucratic focus, together with the earlier Shen Buhai and Xun Kuang, Han Fei can still be compared with the early social, Confucian rectification of names.[130]

Although more or less representing an actual social category of debaters,[131] Sima Qian divided the schools (or categories) along elemental lines, as including Ming ("names", the usage of words in philosophy and administration including contracts) for the Mingjia School of Names, and fa (standards including law and method) for those later termed Fajia ("Legalists").[132] Engaging in discussions of "sameness and difference", such distinctions would naturally be useful in litigation and administration.[133] But the more advanced Names and Realities discussions date to the later Warring States period, after Shang Yang, Shen Buhai, and Mencius, i.e. in Han Fei's era.[134]

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). The administrators of both groupings have both elements and share the same concerns, evaluating bureaucratic performance, and the structural relation between ministers and supervisors. The school of names mingjia can also inaccurately be translated as Legalists,[135] using fa comparative models for litigation.[133] The Zhuangzi slanders those who place the practice of Xingming and rewards and punishments above the wu-wei reduced activity of the ruler as sophists and "mere technicians";[136] the Han dynasty term Mingjia is applied to them.[132]

The Qin dynasty used comparative model manuals to guide penal legal procedure,[137] and the final chapter of the Book of Lord Shang certainly "focuses on how to maintain law in a large territorial realm." But as much as Shang Yang ruled by law, penal law by the Qin dynasty supplemented the ritual order. A major reform of the primarily administrative Qin dynasty focuses more on restraining ministers, instituting office divisions that cannot punish at will.[138][139]

Eradicating punishments

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Translator Yuri Pines takes the Book of Lord Shang's final chapter 26 as reflecting administrative realities of the 'late preimperial and Imperial Qin', essentially congruous with knowledge of the Qin. Although seeking governance more broadly, protecting the people from abuse by ministers becomes more important than punishing the people. Taken as universally beneficial, in an attempt to deliver the "blessed eradication of punishments through punishments", clear laws are promulgated and taught that the people can use against ministers abusing the statutes, punishing them according to the penalties of the statute abused. Han Fei advocates the same, but is more focused on accomplishing it through the administrative power of the ruler.[140]

If at least part of the Han Feizi dates date to its period, the Shangjunshu could have circulated on the eve of unification. The work's adoption by the Han Feizi can give the appearance of a living current for the old harsh punishments of Shang Yang that can mistakenly be imposed backward. Pine's work in the Stanford Encyclopedia passingly accepts a long status quo within scholarship: whatever events really transpired, the Qin had otherwise abandoned the harsh punishments of Shang Shang before unification. The Book of Lord Shang itself is not a homogeneous ideology, but shifts substantially over its development. As the work's first reference, the Han Feizi recalls its earlier Chapter 4, saying:[141][5]

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 his heavy punishments.[5] As a component of general colonization, the most common heavy punishment was expulsion to the new colonies, with exile considered its own 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 its own heavy punishment in ancient China. They are not harsher for their time, and form a continuity with the early Han dynasty,[142] abolishing mutilations in 167 BC.[143][144]

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.[145] Replacing mutilation, labor from one to five years becomes the common heavy punishment in early Imperial China, generally in building roads and canals.[146] Aiming to reduce punishment to a minimum, the idea of redemption can otherwise be found in the Analects of Confucius, attempting to ensure a correct application of the rectification of names.[147]

Han Feizi

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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. Utilizing fa standards, Han Fei's ruler abandons personal preferences in reward and punishment out of self-preservation.[148]

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.[149] 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.[150]

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. While recalling Shang Yang, Han Fei places a more equal emphasis on reward to encourage people and produce good results; punishment for him was still secondary to simply controlling ministers through techniques. Although in bad times these could be expected to include espionage, they consisted primarily simply in written agreements.[151]

Justice

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Emphasizing a dichotomy between the people and state, the Book of Lord Shang in particular has been regarded as anti-people, with alienating statements that a weak people makes a strong military. But, such statements are concentrated in a few chapters, and the work does still vacillate against ministerial abuses.[5] Michael Loewe still regarded the laws as primarily concerned with peace and order. They were harsh in Shang Yang's time mainly out of hope that people will no longer dare to break them.[152][5]

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.[153] 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.[154][155]

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":[156]

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.

Sources in Legalist Mythos

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Jia Yi (200–169 BCE)

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The Han dynasty mainly villainizes the First Emperor of China as arrogant and inflexible, blaming the second emperor for the fall of Qin. In the early Han, Jia Yi (200–169 BCE) associates the first Emperor with cruel punishments. Amongst figures that would otherwise be to taken to be his own Huang-Lao typified allies, Sima Qian glosses Jia Yi a scholar of both Shang Yang and Shen Buhai. While he likely had read both, he was a more likely proponent of Shen Buhai, supporting regulation of the bureaucracy and feudal lords.

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. The Emperor sent him to teach his sons. Mark Edward Lewis modernly characterized it as a politically motivated mythos.[157]

Liu An (179–122 bce)

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Sinologists Herrlee G. Creel and Yuri Pines cite the Huainanzi, associated with Liu An (179–122 bce), as the earliest combinational gloss of Shen Buhai with Shang Yang, comparing them as one person with harsh punishments to their own doctrine.[158] Positively receiving reunification of the empire, the text opposes centralized government and the class of scholar-officials. With ideas of wuwei nonaction, the Huainanzi recommends that the ruler put aside trivial matters, and follow the ways of Fuxi and Nüwa, abiding in Empty Nothingness and Pure Unity. Placing ritual specialists lower than heavenly prognosticators, and aiming to demonstrate how every text that came before it is now part of its own integral unity, the Huainanzi posed a threat to the Han court. Although Chapter 1 is based most strongly on Laozi, the work otherwise most strongly resonates with the Zhuangzi, with influences from the Hanfeizi, Lüshi chunqiu, Mozi, and Guanzi, the Classic of Poetry, etc.[159]

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 Bang took 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... distributed the grain in the Juqiao granary, disbursed the wealth in the Deer Pavilion, 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

The Fa School

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Inasmuch as the term Legalism has been used modernly, Dingxin Zhao characterizes the Western Han as developing a Confucian-Legalist state.[160]

Liu An, as traditional author of the Huang-Lao typified Huainanzi, would be suppressed together with the Huang-Lao faction by other potential Han Feizi students, the Shang Yangian Emperor Wu of Han (reign 141-87bce), Gongsun Hong and Zhang Tang. Under Confucian factional pressure, Emperor Wu dismisses the Yellow Emperor Daoists, xingming theoreticians, and those of other philosophies, and discriminates against scholars of Shang Yang, Shen Buhai and Han Fei. When Wu was older, those officials who praised Shang Yang and Li Si and denounced Confucius were upheld. Together with that of the Confucians, the imperial examination system would be instituted through the likely influence of Shen Buhai and Han Fei, who advocated appointment by methodologies of performance checking.[161]

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.[162]

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. They associate the schools with ancient departments, with the fa-school "probably originating in the department of prisons", whose descendants in Dong's essay, then, failed to punish criminals. Fajia becomes a category of texts in the Han state's own Book of Han (111ce), with Dong's argument included in his Chapter 56 Biography.[163]

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.[164] Shiji 120:3291

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