Legalism (Chinese philosophy)

Legalism (Chinese philosophy)
Fajia, often termed Legalism, is one of six classical schools of thought in Chinese philosophy. The "Fa school of thought" represents several branches of what Feng Youlan called "men of methods"—statesmen or theoreticians often compared in the west with "political realism"—who contributed greatly to the construction of the bureaucratic Chinese empire. Although lacking a recognized founder, the earliest persona of the Fajia may be considered Guan Zhong (720–645 BCE), while Chinese historians commonly regard Li Kui (455–395 BCE) as the first Legalist philosopher. Sinologist Herrlee G. Creel regarded the combination of administrator Shen Buhai (400–337 BCE) and Legalist Shang Yang (390–338 BCE), syncretized under Han Fei (c. 240 BCE), as becoming what would historically be known as the Fajia, with the former two representing its founding branches.
Sinologist Jacques Gernet considered the "theorists of the state" later christened Fajia or 'Legalists' to be the most important intellectual tradition of the fourth and third centuries BCE. With the Han dynasty taking over the governmental institutions of the Qin dynasty almost unchanged, the Qin to Tang dynasty were characterized by the "centralizing, statist tendencies" of the Fa tradition. Leon Vandermeersch and Vitaly Rubin would assert not a single state measure throughout Chinese history as having been without Legalist influence.
Dubbed by A. C. Graham the "great synthesizer of 'Legalism'", Han Fei is regarded as their finest writer, if not the greatest statesman in Chinese history (Hu Shi). Often considered the "culminating" or "greatest" of the "Legalist's" texts, the Han Feizi is believed to contain the first commentaries on the Dao De Jing. Sun Tzu's The Art of War incorporates both a Daoist philosophy of inaction and impartiality, and a Legalist system of punishment and rewards, recalling Han Fei's use of the concepts of power (勢, shì) and technique (術, shù). Temporarily coming to overt power as an ideology with the ascension of the Qin dynasty, the First Emperor of Qin and succeeding emperors often followed the template set by Han Fei.
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 in the construction of the merit system, and might be considered its founder, if not valuable as a rare pre-modern example of abstract theory of administration. Creel saw in Shen Buhai the "seeds of the civil service examination", and perhaps the first political scientist.
Concerned largely with administrative and sociopolitical innovation, Shang Yang was a leading reformer of his time. His numerous reforms transformed the peripheral Qin state into a militarily powerful and strongly centralized kingdom. Much of "Legalism" was "the development of certain ideas" that lay behind his reforms, helping lead Qin to ultimate conquest of the other states of China in 221 BCE.
Taken as "progressive," the Fajia were "rehabilitated" in the twentieth century, with reformers regarding it as a precedent for their opposition to conservative Confucian forces and religion. As a student, Mao Zedong championed Shang Yang, and towards the end of his life hailed the anti-Confucian legalist policies of the Qin dynasty.
Historical background
The Zhou dynasty was divided between the masses and the hereditary noblemen. The latter were placed to obtain office and political power, owing allegiance to the local prince, who owed allegiance to the Son of Heaven. The dynasty operated according to the principles of Li and punishment. The former was applied only to aristocrats, the latter only to commoners.
The earliest Zhou kings kept a firm personal hand on the government, depending on their personal capacities, personal relations between ruler and minister, and upon military might. The technique of centralized government being so little developed, they deputed authority to regional lords, almost exclusively clansmen. When the Zhou kings could no longer grant new fiefs, their power began to decline, vassals began to identify with their own regions. Aristocratic sublineages became very important, by virtue of their ancestral prestige wielding great power and proving a divisive force. The political structures late Springs-and-Autumns period (770–453 BCE) progressively disintegrated, with schismatic hostility and "debilitating struggles among rival polities."
In the Spring and Autumn period, rulers began to directly appoint state officials to provide advice and management, leading to the decline of inherited privileges and bringing fundamental structural transformations as a result of what may be termed "social engineering from above". Most Warring States period thinkers tried to accommodate a "changing with the times" paradigm, and each of the schools of thought sought to provide an answer for the attainment of sociopolitical stability.
Confucianism, commonly considered to be China's ruling ethos, was articulated in opposition to the establishment of legal codes, the earliest of which were inscribed on bronze vessels in the sixth century BCE. For the Confucians, the Classics provided the preconditions for knowledge. Orthodox Confucians tended to consider organizational details beneath both minister and ruler, leaving such matters to underlings, and furthermore wanted ministers to control or at least admonish the ruler.
Concerned with "goodness", the Confucians became the most prominent, followed by proto-Daoists and the administrative thought that Sima Tan termed the Fajia. But the Daoists focused on the development of inner powers, with little respect for mundane authority and both the Daoists and Confucians held a regressive view of history, that the age was a decline from the era of the Zhou kings.
Earlier classification as Daoistic
Less well defined than Confucianism and Mohism, what would be termed the Fa-school or Fajia may not have been considered a coherent ideology until Han Fei, around the time of Li Si (280–208 BCE). As the first of its references, the Oxford reiterates Creel in holding them to be disparate statesmen with no unified doctrine, and that they probably were not an organized or self-aware movement, with Hansen as relevant scholarship. The Fajia would only be considered a school starting in the Han dynasty, with Sima Tan and Sima Qian coining the term, essentially inventing the Fajia in the Records of the Grand Historian (Shiji).
Intended to represent schools of thought, Sima Tan does not name anyone under the schools. Usually referring to the Warring States period philosophers, the Han History, in chronological order, lists Li Kui, Shang Yang, Shen Buhai, Han Fei, Shen Dao, and Han Fei under the School of Fa (Fajia), to which is often added the much earlier Guan Zhong.
Sima Qian originally claimed Shen Dao, Shen Buhai, and Han Fei as having studied the ideology of his own faction, "the Teachings of the Yellow Emperor and Lao-tzu" (Huang-Lao), synonymous with Daojia. As with the Fajia, the Oxford similarly considers Daoism retrospective; it first appears in the Records. The pre-Han Daoists were more an informal network than an organized school or movement. Like the Confucians, they did not approach dominance or orthodoxy. The Mohists were an organized grassroots movement.
Chinese texts commonly classed Guan Zhong and Shen Dao under Daojia before they are later classed under Fajia. The Guanzi text, as much later than Guan Zhong, contains proto-Daoist texts, and was classed as Daoist in the Han bibliography. As Sinologist Chad Hansen of the Standford's Daoism would note, the early lack of distinction between Daojia and Fajia would not suggest that the distinction existed during the classical period.
With precedent and formal similarities between the texts and Daoism, as including Han Fei's advocacy of wu wei or reduced activity by the ruler, the theorists were often supposed by the Chinese and early scholarship to have studied and been rooted in Daoism. Arthur Waley (1939) supposed a "very real and close connection" between what he termed Chinese "Realism" and Daoism.
Modern scholarship does not take Daodejing to be as ancient as its portrayal; the earliest complete written editions of the Daodejing date back to the early Han dynasty, with no earlier records attesting to it, although incomplete versions date back to the fourth century B.C. By Sinologist Creel's (1970) time, few critical scholars believed Laozi to have been a contemporary of Confucius. Although incomplete versions of the Daodejing may have been contemporary to Shen Buhai's time, Creel did not find Shen Buhai, as Han Fei's predecessor, to be influenced by Daoist ideas, lacking metaphysical content.
On the other hand, Shen Buhai quotes the Analects of Confucius, in which Wu Wei can also be seen as an idea. Creel would suggest the possibility that Shen Buhai influenced the Daodejing with regards wu wei, although Roger T. Ames (1994) suggests that few contemporary scholars take such chronologies at face value. Creel does not exclude the possibility that Daoist ideas influenced the Fajia before they were written down in the Zhuangzi and Daodejing, or for instance influence by Yang Zhu and the Yangists, but did not find Huang-Lao itself before its mention in the Records.
As had generally generally already been accepted by scholarship at the time, nor did Creel find the Han Feizi's Daodejing commentary to have been written by Han Fei. The Han Feizi is most similar to the Shen Buhai fragments, with Shen having been prime minister of their native Hann state. Graham would reiterate that the "Legalists" do not appear to make effective use of the Daodejing, as the Han dynasty Huainanzi does, while the final chapter of the Zhuangzhi furthermore does not regard Lao Tzu and Zhuangzhi as having been part of a Daoist school.
Hence, Hansen, as the fifth of the Oxford's references, would not regard the Fajia or Daojia as having been self-conscious pre-Han schools. The Outer Zhuangzi's developmental history of thought, excluding the Confucians, includes Mozi, Song Xing as another Mohist-derived school, Shendao, Laozi, and finally Zhuangzi. While others of the Fajia are left out, the outer Zhuangzi takes Shen Dao as Daoistic, preceding both Lao Tzu and Zhuangzi. Hansen would take Daoist theory as beginning in the relativist language discussions of Shen Dao, and still considers Shen Dao's theory foundational for a Daoist favoring of Dao, as meaning guide, over Heaven, a narrative shared with the late Mohists in that an appeal to Heaven justifies thieves as well as sages.
Attempts to root the Han Feizi in proto-Daoist attitudes, naturalism or milieu can be still seen within scholarship. Although modernly more often given to contrast and comparison with the Mohists, writing at the turn of it's discussion, Makeham still considered some of the Han Feizi's most typifying chapters as being of distinctly Daoist quality, not considering it's dividing line as having ever been particularly clear. He considered another Daoist school named by Sima Qian as practically describing Xing-Ming, as the practice historically typified of the Fajia. Tao Jiang argues a Daoist comparison more broadly.
Invention of the Fa School
As for Fajia, Sima Qian says:
With the Han Feizi as syncretic precedent, the Records generalize Shang Yang (Gongsun), Shen Buhai and Han Fei as adherents of the doctrine of (xing ming 刑名). Creel argued for it's popular translation of “performance and title”, though John Makeham later argued that "title" or name more simply refers to speech. As a doctrine of Han Fei earlier originating in Shen Buhai, Xing-Ming involves personnel selection through the usage of proposals to establish offices (names), comparing them with results. The First Emperor lists Xing-Ming amongst his accomplishments.
A commentator on the Hanshu considered Xing-Jia another moniker for the fa thinkers, with Ming-jia connotating the school of names. In some contexts Xing-Ming was used in reference to Han Fei and Shang Yang, but can also refer back to the school of names. The Daodejing does not specifically suggest direct exposure to the school of names, although its discussion of "names that cannot be named" place it within the same milieu as a reaction to Mozi; Huang-Lao similarly bares its mark.
Quotations from the Shangjunshu demonstrate a Names practice of its own, but although the administration of Gongsun Yang, remembered posthumously for harsh punishments, was otherwise pioneering, he is not known for the practice of the administrative method of Shen Buhai and Han Fei. Shen Buhai practiced a less automated version lacking punishment, termed ming-shih, as more generally associated with the school of names.
Xing literally means form or "standard", although it's meaning is not very well understood; Makeham takes it as referring to a commission's result as a component of Han Fei's description. Prior to it's penal incorporation it is possible that xing-ming already more specifically connotated punishment; like Creel however, Makeham also considered this unlikely, but notes that it regardless already has more specific connotation. It was still often used in the sense of form during the Eastern Han dynasty.
Regardless, Han Fei includes Shen Buhai under his own doctrine of Shu (technique) alongside his own avocation of harsh punishments, for which Gongsun Yang is known. Pairing Gongsun Yang and Shen Buhai, Sima Qian names reformers like Jia Yi as an advocate of Shen Buhai and Gongsun Yang. Jia Yi wrote the Disquisition Finding Fault with the Qin, and as Creel says was probably not an advocate of Gongsun Yang. Nonetheless, Jia Yi exiled to the southern Changsha Kingdom under factional pressure, although still tutoring a son of the Emperor.
The historiographer Liu Xin (c. 50 BCE – 23 CE), as a kind of follow up work, assigned the schools as having originated in various ancient departments, which was adopted by later Chinese scholars even into the later 1700s. Maintaining a lack of distinction between officers and teachers among the Zhou until its disintegration, it portrays the Fajia as having originated in what Feng Youlan (1948) translates as the Ministry of Justice, emphasizing strictness, reward and punishment. Although considering its social indications as not without merit, Feng Youlan did not accept this theory.
With the Han dynasty shifting favor from Huang-Lao to Confucianism, the orthodox interpretation of the Fajia becomes Confucian and more critical. It would "be quite popular and respectable to oppose the harsh use of penal law"(Creel), and apart from disliking the managerial controls of Xing-Ming itself, those otherwise disliked by the Confucian orthodoxy, with some philosophical association, would also often be slurred as Fajia, like the otherwise Confucianistic reformers Guan Zhong and Xunzi, and the Huang Lao themselves.
Although Sima Qian appeared to be aware of the differences between Shen Buhai and Gongsun, Creel suggests that this would seem to disappear among scholars as early as the Western Han dynasty. Although its proponents were often of the Shen Buhai branch, and Gongsun Hong, who founds the civil service examination, studied Xing-Ming, it becomes known as penal law within the administration. Administrative methods, Shen Buhai moderates and even otherwise Confucians are all slurred as Fajia depending on factional interests, becoming known as such. Han Fei, Gongsun, and Shen Buhai are censured, apart from fragments the work of Shen Buhai disappears from history, and "Legalists" or otherwise more moderate practical administrators are recruited under Confucian syncretism.
Western reception as Realists
As presented by Athur Waley (1939), Realist interpretation of the subject in part represents an early critique of Legalist interpretation, which took Fa by its modern definition of law. Understood modernly to have been broader than law and punishment, represented most prominently in the 1928 translation of the Book of Lord Shang, Waley says that "they held that law should replace morality... (but) apart from their reliance on law and punishment, their demands may be summed up in the principle that government must be based upon the actual facts of the world as it now exists. Rejecting all appeals to tradition and supernatural guidance, the term Realist seems to me to fit the general tendency of their beliefs better than school of law." Although itself having used the term Legalism, the Oxford still considered Realism a more accurate label.
Positive moral interpretation is elaborated for the subject modernly, but that "government must be based upon the actual facts of the world as it now exists" was reiterated by A.C. Graham (1989) as "These are political philosophers, the first in China to start not from how society ought to be but how it is." To its point, Graham quotes his relevant contemporary Benjamin I. Schwartz. Contrary to common comparisons of Han Fei with Machiavelli, Schwarz observed that Machiavelli taught an art rather than a science of politics, while the Legalists "seem closer in spirit to certain 19th- and 20th-century social-scientific 'model builders'". Schwarz "finds in China more anticipations of contemporary Western social sciences than of the natural sciences", with Shen Buhai's 'model' of bureaucratic organization "much closer to Weber's modern ideal-type than to any notion of patrimonial bureaucracy."
In the Realist vein, A.C. Graham's "Disputers of the Tao" titled his Legalist chapter "Legalism: an Amoral Science of Statecraft", sketching the fundamentals of an "amoral science" in Chinese thought largely, Sinologist Goldin notes in a criticism, based on the Han Feizi, consisting of "adapting institutions to changing situations and overruling precedent where necessary; concentrating power in the hands of the ruler; and, above all, maintaining control of the factious bureaucracy."
Nonetheless, Eirik Lang Harris of The Shenzi Fragments (2016) echoes the view of "starting not from how society ought to be but how it is" as a commonality between the Fajia's four most prominent figures. Although himself following a line of impartial justice for the Fajia, Tao Jiang's modern formulation of the Fajia reiterates Graham: With Fa as their key notion, the Fajia hold in common a focus in the institutionalization of political power, and a questioning of the moral values of the Confucians, disputing an assumed connection between personal virtue and political authority. Graham says: "they have common ground in the conviction that good government depends, not as Confucians and Mohists supposed on the moral worth of persons, but on the functioning of sound institutions."
Modernly, Sinologist Yuri Pines of the Stanford's Fa tradition still takes the realist principle as a foundation for the tradition. While Legalist interpretation has been criticized modernly, Pines takes Realism as having been defended to be more or less still legitimate, although as with Tao Jiang accepts Legalist interpretation as still having explorative value. Noting them as "generally devoid of overarching moral considerations", or conformity to divine will, Pines terms the members of the Fa tradition as "political realists who sought to attain a 'rich state and a powerful army' (Shang Yang-Han Fei) and to ensure domestic stability", only displaying "considerable philosophical sophistication" when they needed to justify departures from conventional approaches.
Although taking the thinkers as realists, as a matter of discipline, Pines suggests the Fa tradition as a more suitable category, with Fa itself representing as not oppression but as transparency. Pines qualifies against a perception of them as totalitarian, as stated by "not a few scholars", including Feng Youlan (1948), Creel (1953) as prior to some of his more prominent work on Shen Buhai, and Zhengyuan Fu's 1996 The Earliest Totalitarians. Although (the Shang Yang branch's harsh laws) and "rigid control over the populace and the administrative apparatus" might seem to support totalitarianism, apart from exposing the fallacies of their opponents, the Fa tradition has little interest for instance in thought control, and Pines does not take them as "necessarily" providing an ideology of their own.
Various modern scholarship
In contrast to what he takes as the "simple behaviourism" of Schwarz and Graham, Hansen takes Han Fei as more sociological. The ruler should not trust people because their calculation is essentially based on their position, regardless of their past relationship. A wife, concubine or minister all have positional interests. Hence, the ruler engages in calculations of benefit rather than relation. Ministers simply interpret moral guidance in ways that benefit their position. The ruler exclusively uses Fa measurement standards for calculation to reduce possible interpretation. The enemy of order and control is simply the enemy of objective standards, draining power by twisting interpretation through consensus evaluation of clique interests.
Ross Terrill's 2003 New Chinese Empire viewed "Chinese Legalism" as "Western as Thomas Hobbes, as modern as Hu Jintao... It speaks the universal and timeless language of law and order. The past does not matter, state power is to be maximized, politics has nothing to do with morality, intellectual endeavour is suspect, violence is indispensable, and little is to be expected from the rank and file except an appreciation of force." He calls Legalism the "iron scaffolding of the Chinese Empire", but emphasizes the marriage between Legalism and Confucianism.
Leadership and management in China (2008) takes the writings of Han Fei as almost purely practical. With the proclaimed goal of a “rich state and powerful army”, they teach the ruler techniques (shu) to survive in a competitive world through administrative reform: strengthening the central government, increasing food production, enforcing military training, or replacing the aristocracy with a bureaucracy. Although typically associated with Shang Yang, Kwang-Kuo Wang takes the enriching of the state and strengthening of the army as dating back to Guan Zhong.
Contrary Graham, Goldin (2011) would not regard Han Fei as trying to work out anything like a general theory of the state, or as always dealing with statecraft. Noting Han Fei as also often concerned with saving one's hide, including that of the ruler, the Han Feizi also has one chapter offering advice to ministers "contrary to the interests of the ruler, although this is an exception... The fact that Han Fei endorses the calculated pursuit of self-interest, even if it means speaking disingenuously before the king, is not easily reconcilable with the reconcilable with the notion that he was advancing a science of statecraft."
Pines page has taken the goal of a “rich state with powerful army” as a primary subject since 2014. In this vein, Pines takes human nature to be a "second pillar" of fa political philosophy, as eschewing its discussion. The "overwhelming majority of humans are selfish and covetous", which is not taken to be alterable, but rather "can become an asset to the ruler rather than a threat." In this regard, Han Fei is an addendum to Gongsun Yang, with Shen Dao contributing.
Kenneth Winston emphasizes the welfare espoused by Han Fei, but while Han Fei espoused that his model state would increase the quality of life, Schneider (2018) reviews this as being considered this a legitimizing factor; rather, a side-effect of good order. He focused on the functioning of the state, the ruler's role as guarantor within it, and aimed in particular at making the state strong and the ruler the strongest person within it.
Early reception as Legalists
Varying between interpretation and translational convention, the various Sinologists, particularly older one's like Arthur Waley (1939 Three Ways of Thought in Ancient China), but also more modernly A.C. Graham (1989 Disputers of the Dao), may employ Legalism or Realism in reference to the thinkers the Chinese traditionally termed Fajia; "Realists called in Chinese the Fajia, School of law... we might call Amoralists"(Waley) or "when Sima Tan classified the philosophers under his Six Schools he grouped the teachers of realistic statecraft under a 'School of Law' (Fa chia), for which the current English abbreviation is 'Legalists'"(Graham)". This is not to say that either were not respected major scholars, let alone that Graham has nothing to contribute.
The early scholarship of Feng Youlan (1948) considered it incorrect to associate the thinkers with jurisprudence, describing them as teaching methods of organization and leadership for the governing of large areas. Joseph Needham's (1956) Science and Civilization instead took the "central conception" of Fa as "positive law", expounded with "great clarity by Gongsun Yang in the Shangjunshu". On the other hand, although the Guanzi is by extension generally included among the Fajia, it was not generally taken to be a Legalist text. Arguing against an amoral perception for Han Fei, Kenneth Winston (2005) takes Peerenboom 1993 as Legal positivism's late notable argument, with the clarity and promulgation of Fa as law divorced from morality. Zhengyuan Fu's popular literature, The Earliest Totalitarians, took them as Legal positivists amongst other comparisons, but does not much discuss law.
Often having been translated as law or statue, the Cambridge History of China Volume 1 (1986) explained Fa as primarily referring to models and norms, or recalling Bodde (1981), model, pattern and standard. Noting that there is "hardly a legal rule to be found" in the "voluminous writings" of the "Legalists", Bodde and Loewe take Fa's application to law as more procedural as in the imposition of standards. With regards more penal than administrative law, examples of abstract model patterns from the Qin empire guide legal procedure based on real-life situations, although they do not necessarily explain their designations or the results of their cases. Along with other artifacts, and despite the antagonism of Shang Yang and Han Fei, the codes often uphold Confucian values.
As dating back to the Qin unification, the body of statutes and its major articles are called Lu rather than Fa, although its term is also indicative of administration and measurement. Rarely used in older texts, the Qin would essentially coin the term. Bodde takes the term Lu's origin (which Loewe glosses as Fa) to be in the standard pitchpipe (Lu) or twelve-scale, which would become associated with the calendar and subsequently weight, length, and measurement. Xing as punishment is actually more common in legal texts than Fa. Xing rather than Fa would come to encompass prohibitionary texts or "penal law". For its ancient use by Shen Buhai and Han Fei, given Shen Buhai's lack of indications, Creel would not take Xing's (Xing-Ming) origins as penal either, but as that of administrative checking systems which Makeham (1990) reiterated as originating in the Mohist's subsequent school of names.
A late example, Haig Patapan (Chinese Legality 2022), in a preamble for comparison with Xijinping, would still suggest a preference by Han Fei for extreme authoritarianism and a legal positivist ruler "unconstrained by conventional, ethical, or legal limitations". Considering Han Fei ambiguous, he doesn't argue the point. In fact, Haig takes Fa as law as advancing the general good, aiming at plain comprehension, broad public dissemination, consistency, stability and enforcement, albeit in Han Fei's case advising heavy punishment. Here essentially reiterating Winston with regards Fa as law, to quote Haig, Han Fei says that law (fa) "prevents the strong from attacking the weak, the majority from oppressing the minority, allows the old to live in peace, the young to have a chance to grow, and to secure peaceful borders."
Mohist interpretation
With Creel, Schwarz, Graham, Hansen, and Ivanhoe as primary references, amongst other works on the Mohists, the Oxford (2011) presents the term Legalism as having interpreted the Fa of the Fajia primarily as law, where anciently it did not specifically represent law. The Oxford roots Fa in the easily applied Standards (Fa) and models of the Mohists, still taking law as a kind, but being conceptually closer to performance standards represented by tools providing shape, weight and length. The Fajia's mention in the Routledge's History of Chinese Philosophy would take Fa with regards law as primarily concerned with weights, measures, width of chariots etc., only derivatively including penal law as "explicit public formulations of punishments mechanically geared to named wrongs."
Still considering Legalism to have explorative value, professor Tao Jiang (2021) regards part of Creel's work as the differentiation of Shen Buhai, Fa and the Fajia from Legalist interpretation. Creel saw Legalism to "contrast strangely" with Han Fei blaming Shen Buhai, as the opposite of his doctrine from Shang Yang, for concentrating all of his attention on administrative technique and neglecting law (or more broadly Hansen, the public Fa.) Making a study of the Shen Buhai fragments, seeing remarkable similarities between the Han Feizi and the fragments, noting imperial China as never fully accepting the role of law and jurisprudence, taking the managerial Shen Buhai branch as predominantly influential, and seeing the Shangjunshu as also sometimes using Fa administratively, Creek suggested that, while one might say that the members of the Fajia played a great role in the basic establishment of traditional Chinese government, one cannot say that Legalists did. Moreover, their branches often had different interests historically, with Shen's branch often opposing penal punishment.
Benjamin I. Schwartz (1985), with reference to the Mohists, again noted the inaccuracy of law in many cases, translating it as model, standard, copy, or imitation, with reference to the carpenter's square, compass and builder's plumb-line. The behavior of Mozi's ruler acts as Fa for the noble's and officials as in Confucianism, moving towards "prescriptive method or techne", describing craft and political technique. In contrast to Hansen, Schwarz still regarded Fa as an alternate means to social control from Li. As a secondary theory, he was still open to the old idea of a penal origin for Fa. Hansen would notes Fa does not require any connection to it; guiding the "application of terms", Fa refers to any prescriptive standard.
A.C. Graham (1989) takes takes particular note of the precedent of the Confucian Mencius, whose Fa, apart from models, exemplars and names, includes such physical characteristics as statistics, scales, volumes, consistencies, weights, sizes, densities, distances, and quantities. Accepting distinctions regarding Shen Buhai, in contrast to Creel and Hansen, Graham still viewed Fa as shifting towards law. From persons to be imitated towards impersonal relations of bureaucracy, Graham took Standards (Fa) as "contracting" towards law as paired with and backed by parallels of reward and punishment as early as 600bc, albeit piecemeal. Outside of logical contexts, Graham takes Fa as representing a "standard or exemplar to be imitated", which is still illustrated geometrically.
Posthumously to his major work (1992), in an article on the subject Sinologist Chad Hansen reiterated Legalist interpretation, if applied too broadly, as located in translation; Chinese characters are held to change meaning more often than words in other languages. The political thought of the Fajia have been said to resemble something like Legal positivism. Those who know Chinese, armed with a dictionary, translate it as law. When any of the others schools use Fa, it refers to measurement standards and exemplars. Han Fei says: "If the ruler has regulations based on Fa (measurement standards) and criteria and apply these to the mass of ministers, then he cannot be dupped by cunning and fraud." Hansen suggested that laws cannot generally prevent deception. The meaning shared with the other schools can, measuring to determine standards, and comparing measurements against standards.
Fajia and the Fa tradition
Having previously used the popular term Legalist, Pines (2023) of the Stanford Encyclopedia and modern translator for the Book of Lord Shang (2017), characterizes them as the Fa tradition and Fa thinkers. The term is shared by the as yet unpublished multi-authored work, the Dao Companion to China's fa Tradition. As stated by their publisher, the Dao Companions aim to provide the most comprehensive and up-to-date introductions to various aspects of Chinese philosophy.
Tao Jiang (2021), uncited by Pine's but taken as major achievement in his multi-authored review, Tao Jiang on the Fa Tradition, prior argued for the legitimacy of Fajia as a historical category with Fa in common between the thinkers. Pine's review lauds the work as "engaging the thinkers as theorists rather than mere statesmen, immersed in a dialog with earlier thinkers and texts." Pines shares the terminology of Thinker with Tao Jiang, but had already made prior use of it; Creel also called them "Fajia thinkers".
Pines connects Legalism to a common focus in earlier scholarship comparing the tradition to a modern rule of law, potentially undercutting it's depth. Although taking law to be a correct translation for Fa in many contexts, Pines and Tao Jiang reiterate that it often refers to standards, models, norms, methods, regulations, or (as a verb) to follow. Simply translating it as law, Tao Jiang says, does not do justice to "how the term is used and what it encompasses in the texts involved."
Pines credits Goldin for a preference of the Fa tradition over Legalism, which he argued against as his essay's "most important obligation", saying that "Creel’s objection to translating fajia as 'legalism'" is "still valid today and deserves to be repeated"; even if one wishes to take Shang Yang, whose standpoint is administrative, as more Legalistic, Shen Buhai, who compare offices and performances, does not "presuppose a legal code or any legal consciousness whatsoever." In imperial China fa still tended to mean something more like “government program” or “institution”, with the “Green Sprouts Policy” (Qingmiao fa 青苗法) being Wang Anshi's 王安石 (1021-1086) "attempt to establish a government credit bureau."
Goldin's critique of Fajia primarily considers it "partisan and anachronistic"; it was coined by Sima Tan to "urge his particular brand of syncretism as the most versatile world view for his time." While one might call oneself a Ru (Confucian), or pre-imperially a Mo (Mohists), no one ever actually called himself a Fajia, no Fa school actually existed, and no lineage actually existed. Pines considers it misleading as implying a self-aware, organized intellectual current commensurate with the followers of Confucius 孔子 (551–479 BCE) or Mozi 墨子 (ca. 460–390 BCE), whereas no early thinker identified himself as a member of the Fajia (or "School of Fa.")
As opposed to this, Tao Jiang emphasizes their political prominence as unusual among classical thinkers, standing "at the beginning of a top-down political revolution that would radically transform the subsequent political history of China." Tao Jiang recalls Ivanhoe, who "defends the traditional Chinese use of jia to group classical thinkers by pointing out that jia 家 literally means family", whose intellectual families did not require relation by blood.
Although characterizing Fa thinkers as political realists, as defended modernly to be more or less legitimate, Pines takes its usage as a designation to give the impression that "the opponents of fajia were mere idealists, which was not the case."
Creel's branches of the Fajia
Sinologist Herrlee G. Creel (1970/1974) presents Han Fei as largely responsible for synthesizing the various tendencies that would be grouped together under what Sima Tan termed the Fajia. These stem primarily from what Creel considered to be two disparate contemporary thinkers, Shang (Gongsun) Yang and Shen Buhai. Han Fei at least portrays himself as combining the two. The combined reference, Creel explains, is what would commonly become known as the Fajia, with continued influence after the fall of the Qin dynasty. Although Han Fei's status as "grand synthesizer" has generally been accepted by scholarship, Creel only considered its combination very imperfect.
Because, historically, despite the presentation of their opponents, those advocating policies derived of Shang Yang or Shen Buhai did not endorse each other's views, Creel advised that the Shen Buhai group be called "administrators", "methodists" or "technocrats". Not without its subsequent categorical dissent, neither Shen Buhai's or his successors, Creel said, can be understood as Legalist by the English definition of the term. Although accepting the branches lens by the time of its writing, Michael Loewe of the Cambridge History of China has reservations: Han Fei called both branches "the instruments of Kings and Emperors", and Li Si praises them equally, finding no contradiction between them. Loewe instead argues for their complementarity, with life in the Qin Empire being more reasonable, and government more sophisticated, than if it had been based on the dogma of the Book of Lord Shang (Shangjunshu) alone.
Although discussed elsewhere, Creel's 1974 Shen Pu-Hai: A Chinese Political Philosopher of the Fourth Century B. C. represents the only major publication on Shen Buhai, with Tao Jiang (2021) notably devoting a chapter to him, elsewhere referencing a summation of the material covered here. As a rare example of verbatim usage, S. R. Hsieh's 1995 introductory recap followed Creel to the letter, calling them "Legalists/Administrators", while Karyn Lai's dedicated 2008 Introduction to Chinese Philosophy still relied heavily on Creel and Benjamin Schwarz.
Han Fei himself presents the two schools. Han Fei says, with a more modern translation;
Although their topics are not as narrow as Han Fei presents, and despite Han Fei's inclusion of power over life and death under his own Shu, there is no basis to suppose that Shen Buhai advocated Shang Yang's doctrine of reward and punishments. Creel notes six works as identifying Shen with bureaucracy; none identify him with penal law when spoken of by himself, and none pre-Han. Only when he is paired with Shang Yang is penal law attributed to them together in the Han dynasty. Historically, as with Shen himself, Shen's so-called Shu "branch" largely ignored Shang Yang and penal practice and sometimes even opposed punishments. His doctrines, called shu, are described as "concerned almost exclusively" with the ruler's selection of ministers.
In contrast to the limited body pertaining to Shen Buhai, censured under Han dynasty Confucian influence, Creel notes an "impressive body" of early works unanimously testifying Gongsun Yang's doctrines as described by Han Fei. That is, his doctrine being called Fa, as including penal law, rewards and punishments, and lacking Shu, or managerial technique. Apart from general mutual surveillance and holding ministers to the public Fa, he advised no method to control and supervise ministers. Most historical works posthumously emphasize his use of harsh penal law. None indicate concern for organization or control of the bureaucracy. Recalled by Tao Jiang, Creel mostly leaves the Legalist interpretation of him alone, accepting it as the Legalist branch.
Tao Jiang follows Creel in differentiating the Fajia from Legalism; Creel takes Shang Yang as ancient China's Legalist school, with Han Fei inadvertently associating Shang Yang and Shen Buhai together in the Fajia. However, despite portrayal, the Han dynasty's penal reception, and Duvendak's early primary translation of law, in reviewing the Shangjunshu, Creel also saw Gongsun as sometimes using Fa in an administrative sense, of which Shu is a variety. The Book of Lord Shang, Goldin says, still engages statutes more from an administrative standpoint, as well as addressing many other administrative questions. Pines's 2017 translation of the Book of Lord Shang uses law where appropriate, but considers it is Fa to have impersonal administration as its second most common.
The scholar Shen Dao (350 – c. 275 BCE) covered a "remarkable" quantity of "Legalist" and Daoistic themes, and there was a time speculating a third "branch" (e.g. Feng 1948), but he lacked a recognizable group of followers. Xun Kuang goes as far as to call him "beclouded" by Fa, and Han Fei sidelines him, basing himself more in Shen Buhai's method of administration. He was instead incorporated into the Han Feizi and The Art of War for his themes on Shi, being "power" or "situational advantage". Despite its necessity, and although seeking to improve its argument, Han Fei says that he speaks on Shi "for mediocre rulers", emphasizing institution. Xunzi references Shen Buhai rather than Shen Dao for the origin of the doctrine of power. Although more theoretical, Han Fei may have otherwise derived shi from the Book of Lord Shang.
Three Elements view
A three elements view of the subject was developed by Liang Qichao through a misinterpretation of Han Fei's critique of Shen Dao's views on power, chapter 40, the “Objection to Positional Power”, leading to a view of Legalist thought as having one primary Legalist current and two deviant sub-currents, being Shen Buhai's principle of rule by techniques (shuzhizhuyi 術治主義), and Shen Dao's “principle of rule by positional power” (shizhizhuyi 勢治主義). The subject's early discussion may be seen as an early modern evidence against the idea that, unlike India, China lacked a tradition to fall back on in modern reform, but its view of the Han Feizi was refuted by Chinese scholars long ago. Although Liang Qichao is occasionally discussed, no one holds his three elements view in the west.
Liang Qichao received little literary attention in the west in his time. Professor Tao Jiang (2021) takes the three elements of Feng Youlan (1948) as a representing a traditional view of the subject, comparing it against Creel's work. Feng Youlan introduced Shi as power or authority, Shu as the method or art of conducting affairs and handling men (statecraft), and Fa as law, regulation or pattern, connecting Fa with Gongsun Yang, Shu with Shen Buhai, and Shi with Shen Dao, with each supposed to have a group preceding Han Fei, the idea being that Han Fei synthesizes them.
While Feng Youlan's view assumed the existence of three groups preceding Han Fei, Creel saw however no evidence of a Shen Dao "school". As quoted by Creel, Han Fei contrasts Gongsun Yang and Shen Buhai. Han Fei criticizes Shen Buhai for lacking Fa, which Creel's earlier scholarship elaborates as law, statute, decree, reward and punishment, and Gongsun for lacking Shu, providing no method for control of the ministers. Han Fei and Li Si (the latter as quoted by Sima Qian) quote Shen Buhai as using Fa in the sense of what Creel translated as method, but never law.
Although the most frequently used term to describe Shen Buhai's doctrine, Han Fei's Shu (technique) does not appear in the Shen Buhai fragments. Only Shu (数 numbers) does, and only twice, although Creel takes this as also used in the sense of technique. Also describing wu-wei and Xing-Ming as techniques of government, although Shu is often translated as technique modernly, Creel more often translated Shu as method, as did Graham and Hansen.
Recalled by Tao Jiang, Creel takes Shu as a variety of Fa. Fa as method or even technique appears to be older than Fa as law, as represented in Han Fei's term fa-shu, or method technique. Accepting the unity of Fa and Shu, Graham took Han Fei as "distinguishing between law as public and method as private", with the need to distinguish varieties of Fa possibly sharpened by the contrast between Lord Yang and Shen Buhai, the latter who "did not use Shu (technique) but included it within Fa (standard)".
Hansen notes Han Fei as connecting his own practice of reward and punishments with Shu, in which ministers are held to performance standards they set for themselves. Han Fei considers shu nonsensical without objective standards (fa), whose key aspect are their inevitable, mechanical nature, independent of the ruler's desires.
Zhengyuan Fu's (1996) The Earliest Totalitarians presented power (shi), law (fa), and statecraft (shu) as the three pillars of Legalism, with Shen Dao emphasizing power, Shang Yang law, Shen Buhai statecraft, and Han Fei their synthesizer. According to reviewer Randall Peenrenboom, by that time the view was considered as overly simplistic; Zhengyuan Fu employed it for the sake of the reader, organizing three chapters with one per theme.
The Oxford (2011)
As at least suitable to a basic introduction, Sinologist Chris Fraiser of the Oxford elaborates a modern interpretation of the three elements as attributable to their posthumous synthesis under Han Fei. Although discussed elsewhere, he does not for instance reference Feng Youlan here, whose scholarship is quite old anyway. Fraiser says: "The Legalists proposed a number of keys to successful government, which Han Fei draws together into a coherent system. He credits his precedessors with articulating three crucial concepts in particular: fa (standards,laws), which he attributes to Shang Yang; shu (arts, techniques), which he attributes to Shen Buhai; and shi (position,power), which he attributes to Shen Dao. He criticizes shortcomings in the approaches of all three men while showing how their common ideas can be combined into a cogent, unified theory."
Mr. Fraser defines Han Fei's Fa as including clear, explicit, specific, publicly promulgated standards of conduct encompassing laws, standards for satisfactory job performance, criteria for military and bureaucratic promotion, and regulation of the general population. Han Fei aims to replace inherited moral teachings and sage kings with Fa and its officials. Objective standards prevent deception of the ruler, their transparency prevents official corruption or abuse, and their exactness and public knowledge prevent bending or violation, controlling the population and limiting official power. Fa eliminates differences in treatment between the population and the bureaucracy or aristocracy.
Mr. Fraser defines Han Fei's Shu as managerial arts or techniques constituting undisclosed and uncodified methods. They include merit-based appointment, strict accountability in relation to job titles, and the employment of reward and punishment ensuring the performance of duties. Officials are assigned duties according to their administrative proposals, whose doctrine under Han Fei is called Xing-Ming. Shu is in part an inheritance of the Mohists who advocated meritocracy, and the doctrine of the rectification of names, which is shared with the Confucians and others.
Mr. Fraser elaborates Shi as connoting institutional power or advantageous position, wielded to implement the standards of conduct and administrative techniques. Based on the idea of the average ruler, it contrasts with the Confucian ideal of rule by moral worth and moral authority, which Han Fei sees as "foolishly unrealistic", condemning the state to constant misgovernment awaiting a sage king. It is secondly based on the idea of ruling and controlling a large number of people, which power and position can accomplish, but charisma cannot. Shi renders moral worth redundant. From a position of power, the ruler employs Fa, wields the handles of life and death, and uses techniques to manage the administration.
Goldin and Tao Jiang
Saying that "The Legalists proposed a number of keys to successful government", without elaboration the Oxford would suggest that not all of the thinkers are focused on Fa, criticizing the Fajia's category through the juxtaposition of a range of governmental methods against their singular element. Prior to his subsequent Fa tradition, Pines also suggested that Fajia reduces the intellectual current to its keyword. Professor Tao Jiang (2021) argues the point, to address whether it is "appropriate to single out fa, over other key notions, as representing the thought of philosophers grouped under fajia."
Tao Jiang takes Sinologist Goldin as antagonist in rejecting the utility of Legalism and Fajia as categories. Primarily criticizing Legalism, Goldin otherwise takes a tendency to "extol Han Fei as great synthesizer" as traceable to a depiction by Han Fei of Shen Dao, Shen Buhai, and Gongsun Yang as "authors of single political concepts". Like Tao Jiang, Goldin considers the focus of Shen Dao, Shen Buhai, and Gongsun Yang to be Fa, only suggesting that Gongun's reforms had broader scope than Fa. Pine's credits Goldin for a preference of the Fa tradition over Legalism.
Goldin takes Han Fei's discussion as a self-serving syncretic maneuver akin to that of Sima Qian, depicting his forebears as only understanding particular aspects of his own more complete ideology. Han Fei says that Shen Buhai speaks of ‘technique’ (shu) and Gongsun Yang standards (fa). Not discussing Shu, Shen Buhai discussed fa quite often. To Han Fei's credit, as Creel noted Han Fei does also refer to Shen Buhai as using fa.
Although Shen Dao is discussed by Han Fei for Shi, Goldin notes that "if anyone deserves to be recognized as a member of fajia, it is Shen Dao, who was criticized by Xunzi for being 'beclouded by fa'". Considering Shen Dao to sometimes use Fa in a more Legalistic sense, Goldin compares Shen Dao's Fa with that of Shen Buhai as an "impersonal administrative technique of determining rewards and punishments in accordance with a subject’s true merit", although that of Shen Buhai was more in the way of selection and promotion.
Recalled by Tao Jiang, Korean scholar Soon-Ja Yang (2010) similarly considers Shen Dao's focus to be Fa, not Shi. Soon-Ja Yang says: "Han Fei quotes Shen Dao not because Shen Dao focused on the concept of shi, but because it is Shen Dao who pointed out that political power or authority takes precedence over individual capabilities in achieving political control." Apart from fa's generality, Soon-ja Yang argued that they are all in fact focused on fa. Tao Jiang recalls Creel with Fa as coming to represent law, administrative method, and even managerial technique (Shu) as covering the bulk of their thought.
Deng Xi
The logician Deng Xi (died 501 BCE), a contemporary of Confucius, is cited by Liu Xiang for the origin of the principle of Xing-Ming. Deng is regarded as the first proponent to advocate following the li, or pattern of things. A term which refers to the processing of jade, it would be utilized by the neo-mohists as the term identifying the logic and history of a thing in the growth of a proposition.
Serving as a minor official in the state of Zheng, Deng is reported to have drawn up a code of penal laws. Associated with litigation, he is said to have argued for the permissibility of contradictory propositions, engaging in hair-splitting debates on the interpretation of laws, "legal principles and definitions. But the purpose of his concept of bian is specifically to examine and distinguish categories so as to prevent hindrances or disturbances. Inferences are then made categorically.
However, he distinguishes great and small bian ethically rather than logically, as Xun Kuang would later (although the Mohists also had ethical discussions). Under the influence of the Mohists, Xun Kuang suggests that categorization is a key to understanding things.
Shang Yang
Hailing from Wei, as Prime Minister of the State of Qin, Shang Yang (390–338 BCE) engaged in a "comprehensive plan to eliminate the hereditary aristocracy". Drawing boundaries between private factions and the central, royal state, he took up the cause of meritocratic appointment, stating "Favoring one's relatives is tantamount to using self-interest as one's way, whereas that which is equal and just prevents selfishness from proceeding."
As the first of his accomplishments, historiographer Sima Qian accounts Shang Yang as having divided the populace into groups of five and ten, instituting a system of mutual responsibility tying status entirely to service to the state. It rewarded office and rank for martial exploits, going as far as to organize women's militias for siege defense.
The second accomplishment listed is forcing the populace to attend solely to agriculture (or women cloth production, including a possible sewing draft) and recruiting labour from other states. He abolished the old fixed landholding system (Fengjian) and direct primogeniture, making it possible for the people to buy and sell (usufruct) farmland, thereby encouraging the peasants of other states to come to Qin. The recommendation that farmers be allowed to buy office with grain was apparently only implemented much later, the first clear-cut instance in 243 BCE. Infanticide was prohibited.
Shang Yang deliberately produced equality of conditions amongst the ruled, a tight control of the economy, and encouraged total loyalty to the state, including censorship and reward for denunciation. "Law" as such was what the sovereign commanded, and this meant absolutism, but it was an absolutism of Fa (administrative standards) as impartial and impersonal, which Gongsun discouraged arbitrary tyranny or terror as destroying.
Emphasizing knowledge of the Fa among the people, he proposed an elaborate system for its distribution to allow them to hold ministers to it. He considered it the most important device for upholding the power of the state. Insisting that it be made known and applied equally to all, he posted it on pillars erected in the new capital. In 350, along with the creation of the new capital, a portion of Qin was divided into thirty-one counties, each "administered by a (presumably centrally appointed) magistrate". This was a "significant move toward centralizing Ch'in administrative power" and correspondingly reduced the power of hereditary landholders.
Shang Yang considered the sovereign to be a culmination in historical evolution, representing the interests of state, subject and stability. Objectivity was a primary goal for him, wanting to be rid as much as possible of the subjective element in public affairs. The greatest good was order. History meant that feeling was now replaced by rational thought, and private considerations by public, accompanied by properties, prohibitions and restraints. In order to have prohibitions, it is necessary to have executioners, hence officials, and a supreme ruler. Virtuous men are replaced by qualified officials, objectively measured by Fa. The ruler should rely neither on his nor his officials' deliberations, but on the clarification of Fa. Everything should be done by Fa, whose transparent system of standards will prevent any opportunities for corruption or abuse.
Evolutionary view of history
What Pines terms the evolutionary view of history was regarded by the early scholarship of Feng Youlan (1948) as a commonality between Gongsun Yang and Han Fei. Discussed in our Realism introduction, Graham (1989) less radically formulates its philosophy as starting "not from how society ought to be but how it is", into which the tradition can be fitted more broadly. Graham adds to the two the Guanzi, which to the current's benefit is a text which may have been written even after the Han Feizi.
However, Creel did not epouse the more evolutionary progressivism we discuss here as a view of Shen Buhai. In contrast to Shang Yang, Shen's fragments take no issue in quoting the Analects. If taken as an extension of the subject, we cannot yet suggest Creel's Shen Bhai "branch" or post-Qin figures as noted for it.
While a changing with the times paradigm was common apart from the Confucians regardless, the difference has been taken more to be more matter of emphasis, and the elucidation in particular of a view held in the Book of Lord Shang. Even adding additional figures we can only present the more "progressive" variation of this tendency as more along the lines of the Shang Yang current or Qin-influenced figures.
Feng Youlan took the "Legalists" as fully understanding that needs change with the times. Admitting that people may have been more virtuous anciently, they maintained that this was due to material circumstances. Han Fei believes that new problems require new solutions. Although a view of history as a process of change may be common modernly, Feng Youlan suggests it contrasted with the beliefs of Ancient China.
In what Graham calls a "highly literary fiction in a stilted parallelistic style", the Book of Lord Shang opens with a debate held by Duke Xiao of Qin, seeking to "consider the changes in the affairs of the age, inquire into the basis for correcting standards, and seek the Way to employ the people." Gongsun attempts to persuade the Duke to change with the times, with the Shangjunshu citing him as saying: "Orderly generations did not [follow] a single way; to benefit the state, one need not imitate antiquity."
While Xun Kuang's doctrine held human nature to be bad, noting the existence of differences with regards Shen Buhai, Graham compared the "Legalists", Han Fei in particular, with the Malthusians, as "unique in seeking a historical cause of changing conditions", namely population growth. Human nature is a Confucian issue. The statesmen acknowledge 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. Graham otherwise considers the customs current at the time as having no significance to them.
Hu Shih (essays 1919–1962) calls Xun Kuang, Han Fei and Li Si "champions of the idea of progress through conscious human effort," with Li Si abolishing the feudal system, and unifying the empire, law, language, thought and belief, presenting a memorial to the throne in which he condemns all those who “refused to study the present and believed only in the ancients on whose authority they dared to criticize."
Hu Shih quotes a song by Xun Kuang.
As a counterpoint, Han Fei or Shen Dao do still employ argumentative reference to 'sage kings'; Han Fei claims the distinction between the ruler's interests and private interests are said to date back to Cangjie, while government by Fa is said to date back to time immemorial. Tao Jiang takes Han Fei's statements in this regard seriously, with Han Fei considering the demarcation between public and private a "key element" in the "enlightened governance" of the former kings.
Anti-Confucianism
While Shen Buhai and Shen Dao's current may not have been hostile to Confucius, Shang Yang and Han Fei emphasize their rejection of past models as unverifiable if not useless ("what was appropriate for the early kings is not appropriate for modern rulers"). Han Fei argued that the age of Li had given way to the age of Fa, with natural order giving way to social order and finally political order. Together with that of Xun Kuang, their sense of human progress and reason guided the Qin dynasty.
Intending his Dao (way of government) to be both objective and publicly projectable, Han Fei argued that disastrous results would occur if the ruler acted on arbitrary, ad-hoc decision making, such as that based on relationships or morality which, as a product of reason, are "particular and fallible". Li, or Confucian customs, and rule by example are also simply too ineffective. The ruler cannot act on a case-by-case basis, and so must establish an overarching system, acting through Fa (administrative methods or standards). Fa is not partial to the noble, does not exclude ministers, and does not discriminate against the common people.
Linking the "public" sphere with justice and objective standards, for Han Fei, the private and public had always opposed each other. Taking after Shang Yang he lists the Confucians among his "five vermin", and calls the Confucian teaching on love and compassion for the people the "stupid teaching" and "muddle-headed chatter", the emphasis on benevolence an "aristocratic and elitist ideal" demanding that "all ordinary people of the time be like Confucius' disciples". Moreover, he dismisses it as impracticable, saying that "In their settled knowledge, the literati are removed from the affairs of the state ... What can the ruler gain from their settled knowledge?", and points out that "Confucianism" is not a unified body of thought.
In opposition to Confucian family sentiment, Tao Jiang (2021) notes Han Fei's analysis of family dynamics as based entirely on the position of the ruler, requiring structural solutions rather than Confucian education or moral cultivation. According to the Liji, an "important early Confucian canon", penal laws should not be applied to high officials. As a major source of political corruption, ministers shielded family members from penal measures in the name of Humaneness and others moral justifications. Only those without connections are subject to the law. Although noting an opposition between politic and morality, Tao Jiang takes Han Fei's opposition in this as clearly pointing to a moral dimension in his vision of political order. In what Tao Jiang takes as one of Han Fei's "most powerful condemnation of the gross injustice suffered by the commoners", Han Fei says:
Recalling the Qin empire
In contrast to more recent western views of the subject as not constituting a major school or movement, Vitality Rubin, a contemporary of Creel in the Soviet Union, took Legalism to be Imperial China's first ideology, and a major competitor to Confucianism, based in the Qin unification as a major event. Despite Han Fei's imprisonment and suicide, Graham took Han Fei as "the most immediately relevant to his times of all Chinese thinkers, the theoretician of the policies by which the First Emperor and Li Ssu united China and laid the foundations of the bureaucratized empire which replaced Zhou feudalism."
Taking Creel as antagonist with regards a magnification of Shen Buhai, and proposing a greater historical impact that might be supposed by Sima Qian for Gongsun Yang, professor Tao Jiang recalls Francis Fukuyama's Origins of Political Order (2011) in regarding China under the Qin as the first Weberian modern state. Tao Jiang counts the Fajia, with Gongsun as a pivotal figure, as instrumental in bringing about a "new model of powerful states, drastically changing the trajectory of Chinese and world political history."
Primarily a comparative with Xijinging, Shiping Hua in Chinese Legality still passes over Gongsun to grant the role to Han Fei as advocating law and the elimination of aristocratic privileges, leading to a strengthened Qin's eventual defeat of the other six rival kingdoms.
Shen Buhai
Creel considered Shen Buhai (400–337 BCE), a past Chancellor of the Han state for fifteen years (351–337 BCE), whose philosophy he dubbed administrative, to have played a greater, if not "outstanding role in the creation of the traditional Chinese system of government", with the "immensely important contribution" of the ruler's role stemming "principally" from him, and not at all from Shang Yang. Apart from Shang Yang's doctrine of penalties, mutual spying, and denouncement among ministers, Han Fei recommends the ruler protect himself through the careful employment of doctrines that had been recommended by Shen Buhai.
The Huainanzi states that Han's officials lacked coherence, leading to the creation of the 'Books on Xing-Ming.' Han Fei criticizes Shen for not unifying Fa, reward or punishment, but what Shen appears to have realized is that the remnants of feudal government, or merely "getting together a group of 'good men'", could not be mixed with the control of a qualified bureaucracy.
Shen's "cardinal principle" is selecting officials based on their abilities and achievements (Xing Ming). The "routine functions"(Shen) of government business are carried out "entirely by the officials", and Shen insists that ministers "must have nothing to do with functions that were not assigned to them."(Creel).
Unlike Shang Yang, Shen sees the ruler abstractly, as simply the head of a bureaucracy, and who need not necessarily be the monarch. Creel's modernizing interpretation sees Shen's ruler as a "majestic arbiter" with a "team" of ministers, firmly but unobtrusively controlled by a number of techniques. The ruler does not often speak, act, or flaunt power, with Shen himself apparently sometimes declining to give opinions on important matters of state. The ruler occupies himself with larger matters, principles or policies. Shen emphasizes a discreet, informed, independent evaluation of ministers and their reports, using the same operational method (Fa) as others of the Fajia to measure and categorize information.
Well aware of the possibility of the loss of the ruler's position, and thus state or life, from said officials, Shen says:
Creel elaborates that unlike Han Fei, Shen still required a strong ruler at the center, emphasizing that without impeding his ministers he must neither trust nor allow any one minister to gain too much power. Ideally, Shen's ruler had the widest possible sovereignty, was intelligent (if not a sage), had to make all crucial decisions himself, and had unlimited control of the bureaucracy.
Following after proposals
Han Fei calls the doctrine of Shen Buhai Shu, or Technique, and describes it as concerned "almost exclusively" with selecting and governing capable ministers, checking performances, and holding power "in his own hands". However, the fragments do not use the term, using (Shu) numbers instead. Hence, Creel believed Shu term originally had the sense of numbers, with implicit roots in statistical or categorizing methods, using record-keeping in financial management as a numerical measure of accomplishment. He notes command of finance as generally held by the head of government from the beginning of the Zhou dynasty; an example of auditing dates to 800 BCE, and the practice of annual accounting solidified by the Warring States period and budgeting by the first century BCE.
With Han Fei and Sima Qian as precedent, Liu Xiang wrote that Shen advised the ruler of men use Shu ('technique') rather than punishment, emphasizing the scrutinizing of achievement to give reward and select capable ministers. He describes describes Shen's doctrines as concerned almost exclusively with personnel management and the monopolization of power, namely the "ruler's role and the methods by which he may control a bureaucracy"(Creel), being the control of and relations between ruler and minister which he characterized as Wu Wei (a kind of tactical non-activity leaving ministerial duties to ministers).
Liu Xiang says that "Shen Buhai's book says a ruler of men ought to use technique rather than punishment, relying on yin hsun to 'supervise and hold responsible' (tu tse) his ministers and subordinates; his holding responsible is very strict. Therefore his doctrine is called shu (method)." And another translation; "Master Shen writings say that the lord of men should grasp shu and do away with punishments, and yinxun in order to supversive and hold responsible his vassals and subordinates."
Literally meaning "to follow after" or imitate, Creel (1970) translates yin hsun (modern: yinxun) as relying on going along with, but confusingly shortens it to relying on persuasion. Goldin quotes Shen as famous for the dictum, "The Sage ruler relies on method (Fa) and does not rely on wisdom; he relies on technique, not on persuasions." Yinxun, Goldin says, is classically associated with Shen Buhai:
The Zhushu (Shu or Techniques of the ruler), or ninth chapter chapter of the Han dynasty Huainanzi, describes Yinxun as "to follow and comply, and delegate responsibilities to one's subordinates." In line with Shen, its primary subject is refraining from the utilization of one's own abilities to co-opt those of the populace, utilizing their eyes and ears instead of his. Completely unmoving, he recognizes the particular talents of his subjects, retaining control over the earth.
Shu (later narratives)
In the Guanzi the artisan's Shu is explicitly compared to that of the good ruler. The History of the Han (Han Shu) lists texts for Shu as devoted to "calculation techniques" and "techniques of the mind", and describes the Warring States period as a time when the shu arose because the complete Dao had disappeared.
The Han dynasty Lunheng says: "People themselves posses the knowledge to decieve others, but when they are to persuade rulers they need a special art (shu) to motivate the superiors--just as super men (commanders) themselves posses a powerful braveness that inspires awe in others."
Another example of Shu is Chuan-shu, or "political maneuvering". The concept of Ch'uan, or "weighing" figures in Legalist writings from very early times. It also figures in Confucian writings as at the heart of moral action, including in the Mencius and the Doctrine of the Mean. Weighing is contrasted with "the standard". Life and history often necessitate adjustments in human behavior, which must suit what is called for at a particular time. It always involves human judgement. A judge that has to rely on his subjective wisdom, in the form of judicious weighing, relies on Ch'uan. The Confucian Zhu Xi, who was notably not a restorationist, emphasized expedients as making up for incomplete standards or methods.
One of the narratives or sayings of Shen Buhai is the ruler being an axis causing the ministers to advance like the spokes of a wheel, so that no one minister gains supremacy. The ruler must be able to access all senior ministers, and not trust any single minister. The general cultural relevance and political connection with the axis and wheel is astronomy related; "Imperial majesty corresponded, not to a legislating creator, but to a polar star, the focal point of universal ever-moving pattern and harmony not made with hands, even those of God." In Confucianism the Emperor, serving as a bridge between heaven and earth, is compared to the pole star, who remains motionless while all others move around him.
Zhuangzi calls "the view from nowhere" the "hinge of daos", or dao-shu, a nonpurposive perspective preceding language, or "view from the axis of daos"(Hansen) from which anything can be said. Speech then leads to particular daos. Hsu Kai (920–974 AD) calls Shu a branch in, or components of, the great Dao, likening it to the spokes on a wheel. He defines it as "that by which one regulates the world of things; the algorithms of movement and stillness". Mastery of techniques was a necessary element of sagehood.
Xing-Ming/Ming-shih
In the Han Dynasty secretaries of government who had charge of the records of decisions in criminal matters were called Xing-Ming, which Sima Qian (145 or 135 – 86 BCE) and Liu Xiang (77–6 BCE) attributed to the doctrine of Shen Buhai (400 – c. 337 BCE). Liu Xiang defines Shen Buhai's doctrine as Xing-Ming, as Sima Tan and Sima Qian had (less accurately) for the Fajia more generally before him. Its meaning was so completely lost as to have previously been translated as criminal law by JJL Duyvendak, otherwise translator for the 1928 Book of Lord Shang.
Despite the penal associations in the Han era, and the association of the term Xing with punishment in Han times, Creel suggests that the term did not originally mean punishment. Moreover, Creel finds it highly unlikely that Shen used punishments in his own time, with Shen's fragments quoted as saying the ruler practices Xing-Ming while lacking punishment, and the apparent absence of the doctrine or practice of uniform reward and punishment in his state.
Liu Xiang and Creel both associate its practice in Qin and Han times as denoting a "system for the organization and control" of official corps, comparing title and performance, and "emphasizing the high position of superiors"(Creel), or as Liu Xiang says, ""honoring the ruler and humbling the minister, exalting superiors and curbing inferiors."
Shen actually used an older, more philosophically common equivalent, ming-shi, linking the "Legalist doctrine of names" with the 200-year name and reality (ming shi) debates of the school of names – another school evolving out of the Mohists. But the earliest literary occurrence for Xing-Ming, in the Zhan Guo Ce, is also in reference to the school of names.
Ming-shi discussions are prominent in the Han Feizi, and Dong Zhongshu's writings on "personnel testing and control" still use Ming-shi instead of Xing-Ming, in a manner "hardly distinguishable" from the Han Feizi,(Creel) although advocating against punishments.
Ming ("name") sometimes has the sense of speech – so as to compare the statements of an aspiring officer with the reality of his actions – or reputation, again compared with real conduct (xing "form" or shi "reality"). Two anecdotes by Han Fei provide examples: The Logician Ni Yue argued that a white horse is not a horse, and defeated all debaters, but was still tolled at the gate. In another, 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 after it and returned claiming to have seen it, and was thereby identified as a flatterer.
Shen Buhai's personnel control, or rectification of names (such as titles) worked thereby for "strict performance control" (Hansen) correlating claims, performances and posts. It would become a central tenant of both Legalist statecraft and its Huang-Lao derivatives. Rather than having to look for "good" men, ming-shi or xing-ming can seek the right man for a particular post, though doing so implies a total organizational knowledge of the regime.
More simply though, it can allow ministers to "name" themselves through accounts of specific cost and time frame, leaving their definition to competing ministers. Claims or utterances "bind the speaker to the realization a job (Makeham)." This was the doctrine, with subtle differences, favoured by Han Fei. Favoring exactness, it combats the tendency to promise too much.
The correct articulation of Ming is considered crucial to the realization of projects.
Suggesting an earlier, fifth century origin for the Sunzi, Robin Yates suggests Xing-Ming derives from the use of military flags and pennants in war, as in a "concrete method" of military organization. If his dating is correct, it places the origin of Xing-Ming more in the military, only later being adopted by the officials. Not presently addressing the matter, Tao Jiang defers to the consensus view placing the Sunzi in the mid fourth century B.C.. He does suggests that chapter 10 of the Shangjunshu has the Sunzi in mind, although differing considerably in views.
Wu wei (inaction)
Sinologist Chad Hansen characterizes Shen Buhai's Shu or techniques as primarily Wu Wei, aimed at "preventing the usual drain and flow of the ruler's power to ministers", and secondarily a rectification of names for personnel control. What Creel noted as Wu Wei's Confucian variation meant that ministers carry out all the functions. The (qualified) non-action of the ruler ensures his power and the stability of the polity, and can therefore, Roger T. Ames says, be considered his foremost technique.
Although less antagonistic than his Han Fei, Shen still believed that the ruler's most able ministers are his greatest danger, and is convinced that it is impossible to make them loyal without techniques. Shen Buhai argued that if the government were organized and supervised relying on proper method (Fa), the ruler need do little – and must do little, portraying the ruler as putting up a front to hide his dependence on his advisors.
Aside from hiding the ruler's weaknesses, Shen's ruler, therefore, makes use of method (Fa) ("Shu") in secrecy. Even more than with Han Fei, Shen Buhai's ruler's strategies are a closely guarded secret, aiming for a complete independence that challenges "one of the oldest and most sacred tenets of Confucianism", that of respectfully receiving and following ministerial advice.
Creel explains: "The ruler's subjects are so numerous, and so on alert to discover his weaknesses and get the better of him, that it is hopeless for him alone as one man to try to learn their characteristics and control them by his knowledge ... the ruler must refrain from taking the initiative, and from making himself conspicuous – and therefore vulnerable – by taking any overt action."
Shen Buhai solves the problem of defining the terms of a job through Wu wei, or not getting involved, making an official's words his own responsibility, saying, "The ruler controls the policy, the ministers manage affairs. To speak ten times and ten times be right, to act a hundred times and a hundred times succeed – this is the business of one who serves another as minister; it is not the way to rule."
Creel considers the "conception of the ruler's role as a supreme arbiter", who maintains power while leaving details to ministers, to have a "deep influence on the theory and practice of Chinese monarchy". Playing a "crucial role in the promotion of the autocratic tradition", what is termed Wu wei (or inaction) would become the political theory of the Fajia (or "Chinese Legalists"), if not becoming their general term for political strategy.
Following Shen Buhai strongly advocated by Han Fei, during the Han dynasty up until the reign of Emperor Wu of Han, rulers confined their activity "chiefly to the appointment and dismissal of his high officials", a plainly Legalist practice inherited from the Qin dynasty.
Lacking any metaphysical connotation, Shen used the term Wu wei to mean that the ruler, though vigilant, should not interfere with the duties of his ministers, acting through administrative method. Shen says:
Though espousing an ultimate inactive end, the term does not appear in the Book of Lord Shang, ignoring it as an idea for control of the administration.
Yin (passive mindfulness)
Shen's ruler plays no active role in governmental functions. He should not use his talent even if he has it. Not using his own skills, he is better able to secure the services of capable functionaries. However, Creel also argues that not getting involved in details allowed Shen's ruler to "truly rule", because it leaves him free to supervise the government without interfering, maintaining his perspective.
Adherence to the use of technique in governing requires the ruler not engage in any interference or subjective consideration. Sinologist John Makeham explains: "assessing words and deeds requires the ruler's dispassionate attention; (yin is) the skill or technique of making one's mind a tabula rasa, non-committaly taking note of all the details of a man's claims and then objectively comparing his achievements of the original claims."
A commentary to the Records of the Grand Historian quotes a now-lost book with Shen Buhai saying: "By employing (yin), 'passive mindfulness', in overseeing and keeping account of his vassals, accountability is deeply engraved." The Guanzi similarly says: "Yin is the way of non-action. Yin is neither to add to nor to detract from anything. To give something a name strictly on the basis of its form – this is the Method of yin."
Yin also aimed at concealing the ruler's intentions, likes and opinions. Shen advises the ruler to keep his own counsel, hide his motivations and conceal his tracks in inaction, availing himself of an appearance of stupidity and insufficiency.
Said obscuration was to be achieved together with the use of Method (Fa). Not acting himself, he can avoid being manipulated.
Despite such injunctions, it is clear that the ruler's assignments would still be completely up to him.
Legacy of the Shu branch
Creel elaborates a number of figures as potentially influenced by Shen Buhai, including Emperor Qinshihuang, Han figures Jia Yi, Emperor Wen of Han, Emperor Jing of Han, Chao Cuo, Dong Zhongshu, Gongsun Hong, and Emperor Xuan of Han. Emperor Wen of Sui is recorded as having withdrawn his favour from the Confucians, giving it to "the group advocating Xing-Ming and authoritarian government." Although a Confucian-oriented minister, Zhuge Liang is noted (by others) as attaching great importance to the work of Han Fei and Shen Buhai.
Michael Loewe considered Creel correct to distinguish between the stands of "Legalism", but questions the thrust of tracing lineages between the personas as a historical method. Loewe characterizes them as sympathizers of imperial government over that of the small states, endeavoring to permanently establishment imperial government without the dangers that destroyed the Qin.
Emperor Qinshihuang erected an inscription naming himself as taking control of the government and for the first time establishing Xing-Ming, a retroactive terminology for Shen Buhai's method utilized by Han Fei. Although Han Fei may be noted as relevant to the Emperor, Shen Buhai has his own historical relevance.
As mentioned previously, Sima Qian names Jia Yi as an advocate of Shen Buhai and Shang Yang, even though Jia Yi would not seem to be not an advocate of Shang Yang. With the encouragement of the Emperor Wen of Han, who the Shiji and Hanshu both regard as being basically fond of Xing-Ming, Jia Yi drew up "complete plans for revising the institutions of government and reorganizing the bureaucracy", which Emperor Wen put into effect. Although exiled by Emperor Wen under factional pressures, Jia Yi was sent to tutor one of Wen's sons, Liu Yi/Prince Huai of Liang.
Bringing together Confucian and Daoist discourses, Jia Yi describes Shen Buhai's Shu as a particular method of applying the Dao, or virtue. He uses the imagery of the Zhuangzi of the knife and hatchet as examples of skillful technique in both virtue and force, saying "benevolence, righteousness, kindness and generosity are the ruler's sharp knife. Power, purchase, law and regulation are his axe and hatchet."
Heir successor Emperor Jing of Han also had two mentors in the doctrines of Shen Buhai, and appointed another Legalist, Chao Cuo. Chao Cuo is regarded by the Hanshu as a student of the doctrines of Shen Buhai, Shang Yang and Xing-Ming. Unlike Jia Yi, he does appear to take interest in Shang Yang.
Following the Rebellion of the Seven Kingdoms, Emperor Jing reformed criminal penalties to reduce injustices and punishments.
An advocate for the civil service examinations, Dong Zhongshu's writings on personnel testing and control use the terminology of Ming-shih, another (older) term for the method of Shen Buhai, in a manner "hardly distinguishable" from the Han Feizi,(Creel) but unlike Han Fei, advocate against punishments. Dong's advocacy aside, the civil service examination did not come into existence until its support by Gongsun Hong, who wrote a book on Xing-Ming. Thus, Creel credits the origination of the civil service examination in part to Shen Buhai.
The Emperor Xuan of Han was still said by Liu Xiang to have been fond of reading Shen Buhai, using Xing-Ming to control his subordinates and devoting much time to legal cases
Shen Dao
Graham characterizes Shen Dao (350 – c. 275 BCE) as a theoretician of centralized power. He argued for Wu wei in a similar manner to Shen Buhai, saying
Shen Dao also espouses an impersonal administration in much the same sense as Shen Buhai, and in contrast with Shang Yang emphasizes the use of talent and the promotion of ministers, saying that order and chaos are "not the product of one man's efforts". Along this line, however, he challenges the Confucian and Mohist esteem and appointment of worthies as a basis of order, pointing out that talented ministers existed in every age.
Taking it upon himself to attempt a new, analytical solution, Shen advocated fairness as a new virtue, eschewing appointment by interview in favour of a mechanical distribution ("the basis of fairness") with the invariable Fa apportioning every person according to their achievement. Scholar Sugamoto Hirotsugu attributes the concept of Fen, or social resources, also used by the Guanzi and Xunzi, to Shen, given a "dimensional" difference through Fa, social relationships ("yin") and division.
The greatest function of Fa ("the principle of objective judgement") is the prevention of selfish deeds and argument. However, doubting its long-term viability Shen did not exclude moral values and accepted (qualified) Confucian Li's supplementation of Fa and social relationships, though he frames Li in terms of (impersonal) rules.
For this reason he is said to "laugh at men of worth" and "reject sages", his order relying not on them but on the Fa.
Linking Fa to the notion of impartial objectivity associated with universal interest, and reframing the language of the old ritual order to fit a universal, imperial and highly bureaucratized state, Shen cautions the ruler against relying on his own personal judgment, contrasting personal opinions with the merit of the objective standard, or fa, as preventing personal judgements or opinions from being exercised. Personal opinions destroy Fa, and Shen Dao's ruler therefore "does not show favouritism toward a single person".
Although Sinologis. Creel (1970:63) believed that Shen had the same sort of administrative idea denoted by Shen Buhai's Xing-Ming, he does not use the term.
Doctrine of position (shi)
Used in many areas of Chinese thought, shi probably originated in the military field. Diplomats relied on concepts of situational advantage and opportunity, as well as techniques (shu) involving secrecy, long before the ascendancy of such concepts as sovereignty or law, and were used by kings wishing to free themselves from the aristocrats. Sun Tzu would go on to incorporate Taoist philosophy of inaction and impartiality, and Legalist punishment and rewards as systematic measures of organization, recalling Han Fei's concepts of power (shi) and techniques (shu).
Henry Kissinger's On China says: "Chinese statesmanship exhibits a tendency to view the entire strategic landscape as part of a single whole ... Strategy and statecraft become means of 'combative coexistence' with opponents. The goal is to manoeuvre them into weakness while building up one's own shi, or strategic position." Kissinger considers the "manoeuvring" approach an ideal, but one that ran in contrast to the conflicts of the Qin dynasty.
Gernet considered the "merit" of the "Legalists" to be the understanding that the power of the state resides in social and political institutions. Their "originality" lies in their aim to subject the state to them. Similarly, Graham (1989) concludes that 'Legalism' marks a shift from the "man-to-man relations of feudalism." 'Legalism' is lacking on discussions on De, or awe-inspiring personal potency. Power shifts to simply occupying institutional positions.
Like Shen Buhai, Shen Dao largely focused on statecraft (Fa), and Confucian reformer Xun Kuang discusses him in this capacity, never referencing Shen Dao in relation to power, which he attributes to Shen Buhai.
Shen Dao is remembered for his theories on shi (lit. "situational advantage", but also "power" or "charisma") because Han Fei references him in this capacity.
Xun Kuang views military science as expressions which can be worked out rationally and systematically, albeit framing them as cultivated rituals. But in explanation as to why talent and worth do not find success, he has a saying; "If the right person does not meet with the right time, then will even one who is talented be able to succeed?"; Sinologist John Makeham suggests the earliest version of this particular line may be taken from the Analects; "The noble man is firm in hard times; when the lesser man falls on hard times, he becomes dissolute."
The thrust of Han Fei's argument is negating Confucianist discussions of rule by moral worth versus rule by power, which might include brigands. Neither will do the job, nor do they rule together. As quoted of Han Fei, Shi, or what Graham translates as the power-base, is not intended to refer to any single doctrine. It may have innumerable variations. It refers to power acquired spontaneously, and political order as such is not based on it, anymore than it is based on moral order. Singular men cannot institute power. Political order is based on order like clearly defined "laws."(Fa) But, power and position will at least enable the ruler to enact these.
In the words of Han Fei,
Shen Dao on shi
Searching out the causes of disorder, Shen Dao observed splits in the ruler's authority. Shen Dao's theory on power echoes Shen Buhai, referenced by Xun Kuang as its originator, who says "He who (can become) singular decision-maker can become the sovereign of All under Heaven." Shen Dao's theory may have been borrowed from the Book of Lord Shang, if he received any portion of it. It may otherwise have originated in Shen Dao's abandonment of a singular Fa, or Standard, as correct.
For Shen Dao, "Power" (shi) refers to the ability to compel compliance; it requires no support from the subjects, though it does not preclude this. (shi's) merit is that it prevents people from fighting each other; political authority is justified and essential on this basis. Shen Dao says: "When All under Heaven lacks the single esteemed [person], then there is no way to carry out the principles [of orderly government, li ]. ... Hence the Son of Heaven is established for the sake of All under Heaven ... All under Heaven is not established for the sake of the Son of Heaven ..."
Talent cannot be displayed without power. Shen Dao says: "The flying dragon rides on the clouds and the rising serpent wanders in the mists. But when the clouds disperse and the mists clear up, the dragon and the serpent become the same as the earthworm and the large winged black ant because they have lost what they ride." Leadership is not a function of ability or merit, but is given by some process, such as giving a leader to a group. "The ruler of a state is enthroned for the sake of the state; the state is not established for the sake of the prince. Officials are installed for the sake of their offices; offices are not established for the sake of officials ..."
While moral capability is usually disregarded by the Fajia, Shen Dao considers it useful in terms of authority. If the ruler is inferior but his command is practiced, it is because he is able to get support from people. But his ideas otherwise constitute a "direct challenge" to Confucian virtue. Virtue is unreliable because people have different capacities. Both morality together with intellectual capability are insufficient to rule, while position of authority is enough to attain influence and subdue the worthy, making virtue "not worth going after".
Han Fei on Shi
Like Shen Dao, Han Fei seems to admit that virtue or charisma can have persuasive power even in his own time. However, he considers virtue instrumental, and Wu-wei, or nonaction, as its essence. Furthermore, he criticizes virtue as insufficient; power should be amassed through "laws" (fa), and unlike Shen considers government by moral persuasion and government by power (shi) mutually incompatible.
The ruler's authority (shi) should depend neither on his own personal qualities or cultivation, or even upon Shen Dao's position or power, but on Fa (law or checks and balances), a more vital source for his authority. Shang Yang and Han Fei's rejection of charisma (shi) as ineffective underwrite their rejection of the Confucian ruler. Han Fei does stress that the leader has to occupy a position of substantial power before he is able to use these or command followers. Competence or moral standing do not allow command.
For Han Fei, in order to actually influence, manipulate or control others in an organization and attain organizational goals it is necessary to utilize techniques (shu), regulation (fa), and rewards and punishment – the "two handles".Reward and punishment determine social positions – the right to appoint and dismiss. In line with Shi, these should never be relegated. The ruler must be the sole dispenser of honors and penalties. If these are delegated to the smallest degree, and people are appointed on the basis of reputation or worldly knowledge, then rivals will emerge and the ruler's power will fall to opinion and cliques (the ministers). Allowing him to prevent collapse by combating or resolving ministerial disagreements and ambitions, the rulers exclusive authority outweighs all other considerations, and Han Fei requires that the ruler punish disobedient ministers even if the results of their actions were successful. Goods may not be considered meaningful outside of his control.
Han Fei
Han Fei's (280–233 BCE) theory is more interested in self-preservation than formulating any general theory of the state. Sinologist Daniel Bell considers Han Fei's work a "political handbook for power-hungry rulers... (arguing that) political leaders should act like rational sociopaths" with "total-state control" strengthened by rewards and punishments.
Nonetheless, Han Fei inheres to the tradition of Fa, or objective "public standards guiding performance", sometimes stressing public proclamations with "measurement-like precision" linking performance with reward or punishment. Considering coherent discourse essential for the functioning of the state, Han Fei's analysis of the problem of rulership is that "people naturally incline to private interpretation"(Chad Hansen). Differentiating his theory from that of the Confucians through the objectivity and mass public accessibility of Fa, he considers measurement (Fa) the only justification for adopting an explicit code, rather than leaving matters to tradition and elite conceptions of virtue (de). As with Shen Buhai and most of the School of Names he takes the congruence between name and reality as a primary goal.
Public, measurement-like standards for applying names (administrative standards or job contracts) can "plausibly make it hard for clever ministers to lie, (or) for glib talkers to take people (or the ruler) in with sophistries ... [They make it possible to] correct the faults of superiors, expose error, check excess, and unify standards ... Laws, by themselves, cannot prevent the ruler from being fooled or deceived. The ruler needs Fa." Han Fei's arguments for "rule by law" (Fa) would not have as much persuasive power as they do if not for Fa, without which its objectives cannot be achieved. He rejects Confucian Li, scholarly interpretation and opinion, worldly knowledge, and reputation: models must be measured, dissolving behaviour and disputes of distinction into practical application.
Considering politics the only means of preserving the power of the state, he emphasizes standards (Fa), preventing disputes in language or knowledge, as the ruler's only protection. Providing reward and penalty automatically, Fa strictly defines state functions through binding, general rules, removing from discussion what would otherwise only be opinion, and preventing conflicts of competencies, undue powers or profits. To this end, Han Fei's high officials focus solely on definition through calculation and the construction of objective models, judged solely by effectiveness.
Wu wei
Devoting the entirety of Chapter 14, "How to Love the Ministers", to "persuading the ruler to be ruthless to his ministers", Han Fei's enlightened ruler strikes terror into his ministers by doing nothing (wu wei). The qualities of a ruler, his "mental power, moral excellence and physical prowess" are irrelevant. He discards his private reason and morality, and shows no personal feelings. What is important is his method of government. Fa (administrative standards) require no perfection on the part of the ruler.
Sinologist Hansen views Han Fei as "playing an important role in furthering the authoritarian distortion of Daoism", which would later be inherited by Neo-Confucianism. Although Han Fei's use of Wu-Wei may have been derivative of Daoism, he references Shen Buhai for it, and its Dao emphasizes autocracy ("Tao does not identify with anything but itself, the ruler does not identify with the ministers"). Randall Peerenboom argue's that Han Fei's Shu (technique) is arguably more of a "practical principle of political control" than any state of mind. Han Fei nonetheless begins by advising the ruler to remain "empty and still".
Han Fei's commentary on the Tao Te Ching asserts that perspectiveless knowledge – an absolute point of view – is possible, though the chapter may have been one of his earlier writings.
Performance and title (Xing-Ming)
Han Fei was notoriously focused on what he termed Xing-Ming
Possibly referring to the drafting and imposition of standardized terms Xing-MIng functions through binding declarations (Ming), like a legal contract. Verbally committing oneself, a candidate is allotted a job, indebting him to the ruler. "Naming" people to (objectively determined) positions, it rewards or punished according to the proposed job description and whether the results fit the task entrusted by their word, which a real minister fulfils.
Han Fei insists on the perfect congruence between words and deeds. Fitting the name is more important than results. The completion, achievement, or result of a job is its assumption of a fixed form (xing), which can then be used as a standard against the original claim (ming). A large claim but a small achievement is inappropriate to the original verbal undertaking, while a larger achievement takes credit by overstepping the bounds of office.
Han Fei's "brilliant ruler" "orders names to name themselves and affairs to settle themselves".
Assessing the accountability of his words to his deeds, the ruler attempts to "determine rewards and punishments in accordance with a subject's true merit" (using Fa). It is said that using names (ming) to demand realities (shi) exalts superiors and curbs inferiors, provides a check on the discharge of duties, and naturally results in emphasizing the high position of superiors, compelling subordinates to act in the manner of the latter.
Han Fei considers Xing-Ming an essential element of autocracy, saying that "In the way of assuming Oneness names are of first importance. When names are put in order, things become settled down; when they go awry, things become unfixed." He emphasizes that through this system, earlier developed by Shen Buhai, uniformity of language could be developed, functions could be strictly defined to prevent conflict and corruption, and objective rules (Fa) impervious to divergent interpretation could be established, judged solely by their effectiveness. By narrowing down the options to exactly one, discussions on the "right way of government" could be eliminated. Whatever the situation (shi) brings is the correct Dao.
Though recommending use of Shen Buhai's techniques, Han Fei's Xing-Ming is both considerably narrower and more specific. The functional dichotomy implied in Han Fei's mechanistic accountability is not readily implied in Shen's, and might be said to be more in line with the later thought of the Han dynasty linguist Xu Gan than that of either Shen Buhai or his supposed teacher Xun Kuang.
The "Two Handles"
Though not entirely accurately, most Han works identify Shang Yang with penal law. Its discussion of bureaucratic control is simplistic, chiefly advocating punishment and reward. Shang Yang was largely unconcerned with the organization of the bureaucracy apart from this. Han Fei connects his own rewards and punishments under his theory of Shu (managerial technique) in connection with Xing-Ming (correlating performances to titles).
As a matter of illustration, if the "keeper of the hat" lays a robe on the sleeping Emperor, he has to be put to death for overstepping his office, while the "keeper of the robe" has to be put to death for failing to do his duty. The philosophy of the "Two Handles" likens the ruler to the tiger or leopard, which "overpowers other animals by its sharp teeth and claws"(rewards and punishments). Without them he is like any other man; his existence depends upon them. To "avoid any possibility of usurpation by his ministers", power and its "handles" of reward and punishment must "not be shared or divided", concentrating them in the ruler exclusively.
In practice, this means that the ruler must be isolated from his ministers. The elevation of ministers endangers the ruler, with which he must be kept strictly apart. Punishment confirms his sovereignty; eliminating anyone who oversteps his boundary, regardless of intention. Fa "aims at abolishing the selfish element in man and the maintenance of public order", making the people responsible for their actions.
Han Fei's rare appeal (among Legalists) to the use of scholars (method specialists) makes him comparable to the Confucians, in that sense. The ruler cannot inspect all officials himself, and must rely on the decentralized (but faithful) application of laws and methods (fa). Contrary to Shen Buhai and his own rhetoric, Han Fei insists that loyal ministers (like Guan Zhong, Shang Yang, and Wu Qi) exist, and upon their elevation with maximum authority. Though Fajia sought to enhance the power of the ruler, this scheme effectively neutralizes him, reducing his role to the maintenance of the system of reward and punishments, determined according to impartial methods and enacted by specialists expected to protect him through their usage thereof. Combining Shen Buhai's methods with Shang Yang's insurance mechanisms, Han Fei's ruler simply employs anyone offering their services.
Notes
References
Sources and further reading
Garfield, Jay L.; Edelglass, William. The Oxford Handbook of World Philosophy. 2011
Creel, Herrlee Glessner. What Is Taoism?: And Other Studies in Chinese Cultural History (1982)
Creel, Herrlee Glessner. Shen Pu-hai: A Chinese Political Philosopher of the Fourth Century B.C. (1974)
Creel, Herrlee Glessner, 1974 Shen Pu-Hai: A Secular Philosopher of Administration, Journal of Chinese Philosophy Volume 1.
Schwartz, Benjamin I. (1985), The World of Thought in Ancient China, Cambridge, MA: Harvard University Press, .
Graham, A.C., Disputers of the TAO: Philosophical Argument in Ancient China (Open Court 1993).
Hansen, Chad. A Daoist Theory of Chinese Thought: A Philosophical Interpretation (1992/2000)
Hansen, Chad. Philosophy East & West. Jul94, Vol. 44 Issue 3. Fa (standards: laws) and meaning changes in Chinese philosophy
Barbieri-Low, Anthony, trans. The Standard Measure of Shang Yang (344 B.C.) (2006)
See also
Harris, Eirik Lang, Legalism (Oxford Bibliographies Online) (Oxford University Press, 2018).
External links
Chad Hansen's Chinese Philosophy Pages
"Chinese Legalism (In Our Time, 10/12/15)"
The Han Feizi
Book of Lord Shang
The Shenzi
Chinese law
Theories of law
Politics of China
Political theories
Schools and traditions in ancient Chinese philosophy
Anti-Confucianism