Legalism (Chinese philosophy)

For other uses, see Legalism (disambiguation).

Legalism
Statue of pivotal reformer Shang Yang
Chinese	法家
Literal meaning	Fa is "way of doing" and "standard", Jia "school of thought", but also "specialist" or "expert", the usage in modern Chinese.
Transcriptions Standard Mandarin Hanyu Pinyin Fǎjiā Gwoyeu Romatzyh Faajia Wade–Giles Fa3-chia1 IPA [fà.tɕjá] Wu Romanization Fat平 ka平 Yue: Cantonese Yale Romanization Faatgāa Jyutping Faat3-gaa1 IPA [faːt̚˧.kaː˥] Southern Min Tâi-lô Huat-ka

Legalism, or Fajia, is one of the six classical schools of thought in Chinese philosophy. Literally meaning (administrative) methods/standards (Fa; 法) "house" or "school" (Jia), the Fa "school" represents several branches of what Feng Youlan called "men of methods", in the West often termed "realist" statesmen, who played foundational roles in the construction of the bureaucratic Chinese empire. The earliest persona of the Fajia may be considered Guan Zhong (720–645 BCE), but Chinese historians commonly regard Li Kui (455–395 BCE) as the first "Legalist" philosopher. Following the precedent of the Han Feizi (c. 240 BCE), Warring States period figures Shen Buhai (400–337 BCE) and Shang Yang (390–338 BCE) would commonly be taken as its "founders."

Calling them the "theorists of the state", Sinologist Jacques Gernet considered "those later christened 'Legalists' (Fajia)" 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 may be characterized by the "centralizing, statist tendencies" of the "Legalist" tradition.

Dubbed by A. C. Graham the "great synthesizer of 'Legalism'", if not more commonly as the "culminating" or "greatest" of the "Legalist's" texts, the Han Feizi is believed to contain the first commentaries on the Dao De Jing in history. 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 on 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. Herrlee G. Creel sees 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

Further information: Warring States period

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 the 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.

Introduction

Invention of the Fa "School"

Although heralding Zichan as pioneer, Chinese scholar Huang Kejian only considers the "Legalists" recognizable by the Warring States period. Professor Robert Eno considers it less well defined compared to Confucianism and Mohism, and it is unclear when it came to be regarded as an intellectual faction, only forming a complex of ideas around the time of Li Si (280–208 BCE), elder advisor to the First Emperor. It was probably never a school in the sense of the Confucians or Mohists, or an organized or self-aware movement at all, and Chinese scholar and ambassador Hu Shih (1891-1962) denied it as such, as does the Oxford Handbook of World Philosophy (2011). Along with Daoism it was only taken to be a school starting with the Han dynasty historians who created the traditional labels and categorized their thinkers.

With the synthesis of Han Fei as precedent, and grouping together disparate statesmen, Han dynasty historiographers Sima Tan and Sima Qian essentially invented the so-called Fa-school or Fajia in the Records of the Grand Historian, portraying it as a subset of their own supposedly superior, Daoistic Huang-Lao syncretism. The Records generalize Shang Yang, Shen Buhai and Han Fei as adherents of the doctrine of “performance and title” (xing ming 刑名), the doctrine of Shen Buhai, even though Shang Yang does not appear to have practiced the method of Shen Buhai. Sima Qian names figures like Jia Yi as an advocate of Shen Buhai and Shang Yang, even though Jia Yi was not an advocate of Shang Yang. Subsequently, in the Han dynasty, Shen Buhai and Shang Yang would often be paired together.

Operating on the idea of an ancient lack of private teaching, which would have been inaccurate as a lense for the formation of the intellectual movements, 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, portraying the Fajia as having originated in what Feng Youlan (1948) translates as the Ministry of Justice, emphasizing strictness, reward and punishment.

Although usually referring to the particular Warring States period philosophers, it would "be quite popular and respectable to oppose the harsh use of penal law"(Creel), and apart from disliking Xing-Ming itself, those disliked by the Confucian orthodoxy, with some philosophical association, would also often be generalized 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 Shang Yang, Sinologist Herrlee G. Creel suggests this disappears among scholars as early as the Western Han dynasty.

The means of interpreting some of the dialectics of the Mohists, who were predecessors to the so-called Fajia, would also be lost for two thousand years.

Common western reception as Legalists

As a matter of 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), have employed a variety of generalizing modernistic anachronisms in reference to the statesmen Sima Tan and Sima Qian 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)".

Sinologist Yuri Pines (2014) notes: "The Chinese term fa jia is already misleading, because it inadvertently reduces the rich intellectual content of this current to a single keyword, fa. “Legalism” is a doubly misleading English translation, because... fa 法 is much broader than “law”; it refers also to methods, standards, impersonal regulations and the like. It is incongruent to discuss the fa jia within the context of the Occidental notion of 'the rule of law,' as was popular in early modern Chinese scholarship." Noting this, he says, he has to use the popular terms to avoid confusing the reader.

The term Legalist is apparently of unknown origin; given its English history, Sinologist Herrlee G. Creel(1970) suggested it may be Franciscan derived as a kind of mutual sympathy, essentially an inaccurate, distorting slur giving "undue prominence" to the harsh penalties of Shang Yang from a time when Shen Buhai had been largely forgotten. In Creel's opinion, given the likely predominant influence of the managerial Shen Buhai branch, 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, even if the reforms of the more "Legalistic" Shang Yang contributed to its contemporary land reform and military unification.

Moreover, as Creel elaborated, although their branches may have been utilized together by the Qin, Han Fei himself distinguished differences among the statesmen in syncretising them, and those following after them historically often had different interests, with the Shen Buhai branch often opposing punishments.

Problems with the Legalistic interpretation date as early as Chinese reaction to Montesquieu's The Spirit of the Laws (1748). Although we must note less knowledge of Shen Buhai, Qing scholar Yan Fu 嚴復 remarks in an annotation:

Looking back at the Legalists such as Shen Buhai 申不害, Han Fei 韓非, Gongsun Yang 公孫鞅, and Li Kui 李悝, their accounts were about reprimand and punishment, and they counseled rulers to implement a legal system. But even though the state of Qin 秦 had a legal system, in today’s eyes, it seems to be the most despotic state; is Montesquieu’s account wrong? Or should Qin not be called a despotic state? Perhaps the reply is: there is ambiguity in the word “fa 法” that is causing confusion. The law that Montesquieu discusses is a system for governing a country, and although it does not necessarily have to take into account civil rights, once such a system is established, all actions of all individuals in the state will come under its regulations. It seems that the law as spoken of in the books discussing reprimand and punishment is simply a penal code used to control ministers and subjects, while the ruler of the state was supreme over the law, and could implement and change laws by their will while not being confined by the law. If so, then even though there is law, the state will still become despotic.

Although the term Fajia might be considered broad enough to include its members, despite continued use, Sinologists like Paul R Goldin (2011) view the various terms like Fajia or Legalist as hermeneutically useless; for instance, while one might call oneself a Ru (Confucian), or pre-imperially a Mo (Mohists), no one ever called actually himself a Fajia. Regarding Legalism, Goldin notes of Creel, that even if one wishes to take Shang Yang as more Legalistic, the practices of Shen Buhai, which compare offices and performances, do not "presuppose a legal code or any legal legal consciousness whatsoever", if one interprets Shang Yang through the more modern lens of law the first place. Along with Goldin, Sinologist Chad Hansen notes that Han Fei follows more in Shen Buhai's vein.

Putting aside to its own section the innumerable glosses of the statesmen as Machiavellian "Realists", one 1922 article refers to Han Fei as a "jurist". The early scholarship of Feng Youlan calls them Men of Methods, while Hansen refers to them together with the Mohists as a tradition of Standardizers.

Popular western reception as Realists

Arthur Waley 1939 popular literature Three Ways of Thought in Ancient China contrasted the Fajia as "Realists": the Realists, he says, largely ignored the individual, holding that the object of any society is to dominate other societies. In this vein, Angus Charles Graham's 1989 "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".

Roger T. Ames (1993) characterizes them more as Machiavellian pragmatists than political philosophers.

Ross Terrill's 2003 New Chinese Empire views "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.

The Fajia are often still compared in the Western world to Machiavellianism, and the Oxford Handbook of World Philosophy still paints the Fajia as "amoral" or "realistic" in being "utterly unconcerned" with moral justification for their institutions, premised on the "brute" facts of behavior, and the political fact of numerous competing states, stating that "What linked these men is that all were theorists or practitioners of a realistic amoral brand of statecraft aimed at consolidating and strengthening the power and wealth of the state and its autocratic ruler. Their thought was realistic in being premised on what they took to be brute facts about how people actually behave ... It was amoral in that they were utterly unconcerned with whether the institutions and methods they advocated were morally justified."

Noting them as "generally devoid of overarching moral considerations, or conformity to divine will, Yuri Pines (2014) terms them "political realists who sought to attain a 'rich state and a powerful army'(Shang Yang) and to ensure domestic stability."

Lack of spiritual dimension

In An Introduction to Chinese Philosophy, Karyn Lai characterizes the Fajia as singular in their rejection of "fundamental tenets of then contemporary life", rejecting bureaucratic influence, the importance of relationships in the public domain, institutional fostering of ethical awareness, and the idea of compassionate government.

The Fajia have widely been seen as a homogeneous anti-religious and authoritarian stream of thought. Julia Ching believed it was "utterly devoid of any religious belief, moral sense, or sensitivity to nature", and made the case that the ideal Chinese sage-king was seen as someone who should operate without excessive mysticism or bias favoring any one spiritual tradition by many political factions over thousands of years, explaining the problems various religions have faced in or because of dynastic courts.

Narrowly political by their nature, legalist writings rarely mentioned a divine or supernatural power, but Sor-Hoon Tan, a scholar who generally agreed with Ching's ideas, has mentioned that some Legalists have discussed Heaven and tried to be religious innovators. Legalist–Taoist syncretism has occurred, and a belief in Legalism that was quite influential was salvation if one followed or executed laws correctly.

Overview

Anti-ministerialism and selfish view of human nature

The key figure in the late imperial bureaucracy was the district magistrate, a combination of a mayor, chief of police, judge, and even military commander. He obtained the position by passing the examination for the civil service and performance at a lower level. He had a staff, some who moved with him, some permanently located in the district. Any penalty more serious than bambooing had to be approved by higher officials, any decision not based on statute required approval from Peking.

Drawing by William Alexander, draughtsman of the Macartney Embassy to China in 1793.

Although not necessarily the focus of his work, Sinologist Herrlee G. Creel (1970) considered the "locus of authority to make policy" a basic difference between Confucianism and the Fajia. Proposing a return to feudal ideals, albeit his nobleman being anyone who possessed virtue, Confucians granted authority to "wise and virtuous ministers", allowed to "govern as they saw fit". In contrast, Shen Buhai and Shang Yang monopolized policy in the hands of the ruler, and Qin administrative documents focused on rigorous control of local officials, and the keeping of written records.

Sinologist Chad Hansen (1992) considers the target of Shen Buhai or Han Fei's Fa not to be the people, but the scholarly bureaucracy and ambitious advisers – the Confucians, who go on to paint themselves as standing against a "systematic, and brutal reign of terror" against the people. Saying that "superior and inferior fight a hundred battles a day", Long sections of the Han Feizi provide example of how ministers undermined various rulers, and focus on how the ruler can protect himself against treacherous ministers, strongly emphasizing their mutually different interests. Much of their doctrines seek self-regulating and mechanically reliable, if not foolproof means to control or otherwise dispense with officials administering the state. Reducing the human element, the first of these is the universally applicable Fa (administrative methods and standards).

More modernly, Sinologist Yuri Pines (2014) distinguishes the "Legalists" by their anti-ministerial stance. Though not exceptional, Pines considers this selfish view of human nature to be a "pillar" of the "Legalist political philosophy," and a number of chapters of the Book of Lord Shang consider men naturally evil. The Fajia are therefore distinct from the Confucians in dismissing the possibility of reforming the elite, that being the ruler and ministers, or driving them by moral commitment. Every member of the elite pursues his own interests. Preserving and strengthening the ruler's authority against these may be considered the "Legalists" "singularly pronounced political commitment".

On rare occasions, Han Fei lauds such qualities as benevolence and proper social norms; with due consideration for the times they were living in however, the Fajia did not believe that the moral influence or virtue of the ruler was powerful enough to create order. Considering the power struggle between ruler and minister irreconcilable (at least on the Shang Yang - Han Fei line), and focusing on the prevention of evil rather than the promotion of good, the Fajia largely rejected the utility of both virtue and the Confucian rule of man, insisting on impersonal norms and regulations in their relations. Their approach was therefore primarily at the institutional level, tending toward a clear power structure, "objective, consistent and enforceable rules and regulations," and in the Han Feizi, engaging in sophisticated manipulation tactics to enhance power bases.

Rather than aristocratic fiefs, Qin territory came under the direct control of the Qin rulers, directly appointing officials on the basis of their qualifications. With the state of Qin conquering all the Warring States and founding the "first" Chinese empire in 221 BCE, the Fajia had succeeded in propelling state centralization and laying the foundations of Chinese bureaucracy, establishing "efficient and effective" codes that "became the pattern for Chinese politics for the next two millennia". The philosophies of the reformers fell with the Qin, but tendencies remained in the supposedly Confucian imperial government, and the Han Feizi would be studied by rulers in every dynasty. Hui even asserts that Confucianism's role in Chinese history is "[no] more than cosmetic", and that the Fajia are a more accurate description of the Chinese governmental tradition.

Feng Youlan and Oxford: Han Fei's elements of the Fajia

Liang Qichao (1873 – 1929), whose relevant work remains untranslated, Feng Youlan (1948), and more modernly Sinologist Chris Fraser in the Oxford Handbook of World Philosophy (2011) elaborate the elements of the Fajia as attributable to Han Fei. We start from the standpoint of Prince Han Fei, then, because our coverage of the subject through a history of Sinology does.

The early scholarship of Feng Youlan's A short history of Chinese philosophy described the elements of Han Fei as Fa, which he translated as law, regulation, and perhaps most relevantly pattern, (Shih) as power or authority; and Shu as "the method or art of conducting affairs and handling men, i.e. statecraft".

Feng Youlan's 1948 translation of Han Fei:

His shih [power] enforces strict orders, and nothing that he encounters resists him.... Only when this is so can his Fa be carried out in concert... The intelligent ruler is like Heaven because he acts in accordance with law fairly and impartially. This is the function of Fa. He is like a divine being, because he has the art of handling men, so that men are handled without knowing how they are handled. This is the function of the shu. And he has the authority or power to enforce his orders. This is the function of shih. The these three together are emperors and kings."

Modernly, Fa is commonly translated as standards, and Shu as technique. Shih is associated (by Han Fei) with the scholar Shen Dao, Shu with Shen Buhai, born half a century before Han Fei and serving as prime minister in his native Hann state, and Fa with the rewards and punishments Shang Yang, a contemporary of Shen Buhai who had migrated to Qin, reforming it. The practices of Han Fei as denoted by the terms are not identical to that of his predecessors, and Han Fei criticizes the three for lacking each-other's methods.

Although distinguishing the more standard or uniform usage of Shang Yang's reward and punishment across the population, from the more managerial practice of Shen Buhai, Han Fei connects his own practice of reward and punishments with Shu, that is, with management as derived of Shen Buhai, in which ministers are held to performance standards they set for themselves. With the then decline of Qin to the great families due administrative deficiencies, and a standardized Fa lacking in Shen Buhai's managerial doctrine and his own state, Han Fei seeks to establish a combined practice. But he aims the three more at ministers than the populace.

Actually following Han Fei in dividing the three along the lines of shih, technique and standards as their exclusive topics would be a sophisticated falsification granting supersedence to Han Fei. Although Han Fei distinguishes Shen Buhai using the term Shu, and criticizes him as lacking Fa, Han Fei also references Shen as using Fa. Han Fei uses the term Shu to distinguish the managerial Fa of Shen Buhai from the more general, standard public Fa of Shang Yang. Shen Dao is also focused on Fa. Usages include terms like Fashu, or interpretive-standard methods. Per the work of Sinologist Herrlee G. Creel, the Fa of Shen Buhai is commonly translated as method, and Sinologist John Makeham characterizes Shu as "the agency of several checking systems that together constituted Method (Fa)", whose central principle is accountability.

Associated with the Mohists, being engineers and logicians, Fa denotes an entire philosophical-historical milieu of comparative hermeneutical functions of interpretation preceding the core of the Fajia. Beginning with an analysis of language, Fa measures to establish "objective" measurement standards, commonly but not necessarily physical, compares and categorizes them. The practice is carried over from the model persons of Confucianism into ethics, physic, logic, and subsequently administration. Although translated in the 1928 Book of Lord Shang as law, and for the subject commonly included as (possibly one of a number) of interpretations, Fa need not necessarily be presupposed as including a conception of law even in the case of Shang Yang, or interpreted as so in all cases.

More modernly, Sinologist Chris Fraser defines Han Fei's Fa as clear, explicit, specific, publicly promulgated standards of conduct encompassing laws, satisfactory job performance, 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 (Fa) 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.

Fraser defines Han Fei's Shu as managerial arts or techniques constituting undisclosed and uncodified methods (Fa). 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. Like Fa, 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.

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.

Power (Shi) as a prerequisite for administration (Fa)

Although the conception of the ruler's sovereignty had already been in development, and the "Legalists" emphasized the legitimacy of the king, the ancient statesmen did not consider legitimacy sufficient. Differentiating the ruler's legitimacy from the rulers force, "Legalism" stresses the necessity of strengthening the ruler's force as a requirement for the practice of administration (Fa) or "law".

Although focused on Fa, and relegated as secondary by Han Fei as Shen Dao's doctrine of power or situationist authority (shi), Shen Buhai, Shang Yang, and Han Fei are all motivated "almost totally from the ruler's point of view". This is considered by Sinologist Chad Hansen as constituting a key difference between the Han Feizi and Confucianism, the more universal social standpoint of Mohism, or for that matter Western law. Although stressing emphasis on the ruler's legitimacy, Chinese scholar Peng He contrasts ruler-centered Chinese Legalism with utilitarianism, and Roger T. Ames characterizes "Legalist political philosophy" as "government of the ruler, by the ruler, for the ruler."

Though Han Fei espoused that his model state would increase the quality of life, he did not consider 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. To this end, Shen Buhai and successor Han Fei are concerned in particular with "the role of the ruler and the means by which he may control a bureaucracy."

Han Fei's prince must make use of Fa (administrative methods and standards implying objective measurement), surround himself with an aura of wei (majesty) and shi (authority, power, influence), and make use of the art (shu) of statecraft. The ruler who follows Dao moves away from benevolence and righteousness, and discards reason and ability, subduing the people through Fa. Only an absolute ruler can restore the world.

Although philosophically complex, it is taken for granted that the goal of the "Legalist" ruler was conquest and unification of all under heaven (or in the case of Shen Buhai at least defense). The writings of Han Fei are almost purely practical, eschewing ethics in favour of strategy teaching 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. Indeed, Chinese sociologist Dingxin Zhao views both Daoism and Legalism as "products of a war-driven rise in rationality."

Comparisons with western law

In Creel's 1970 The Fa-Chia, "Legalists" or "Administrators"?, a "great many" scholars, Creel says, still characterized the "Fajia" as the "School of Law." Creel's paper attempted to differentiate the then "largely forgotten" Shen Buhai, and his usage of Fa as administrative "method", from the more "legal" usage then generalized of Shang Yang. In reviewing the Book of Lord Shang, Creel also believed that Shang Yang sometimes used Fa in an administrative sense, as Shen Buhai does, even if it doesn't suggest Shen Buhai's bureaucratic focus or method of personnel appointment. Creel's 1974 work covered Shen Buhai more broadly. Although old, and not all of his interpretations universally accepted, namely his assertion that Shen Buhai ought not be called Legalist, his work remains relevant and continues to be referenced more modernly.

For Sinologist Chad Hansen (1992) the difference between the Fajia and the Confucians is "not as deep as the Western legal positivists contrast between law and morality." The Fajia were not a distinct school of thought, nor were they always in opposition with the Confucians. Late Warring States syncretic texts like the Guanzi still do not appear to make great distinction between Fa and other social codes, like that of the Confucians, and the Fajia do not seem to think they are using Fa differently than anyone else. Fa is not distinct as a social code, and is not particularly rules based, remaining the administrative function inherited from the Mohists.

Sinologist Peerenboom (1993) argues that Shen Buhai could still be considered an early advocate of rule of law, as opposed to rule of man, in advising the ruler to hide behind technique, warning him "against the display of discretionary powers." In 2005, Chinese law expert Randall Peerenboom compares Han Fei with the accepted standards of legal positivism, and concludes that he is a legal positivist. Establishing the ruler as the ultimate authority over the law, he also "shares the belief that morality and the law need not coincide".

Contrary to Watson and Peerenboom, Kenneth Winston (2005) argues that Han Fei's law still connects morality and law, and can still be called rule of law legislatively rather than judicially. Han Fei's essays, although Realist, are practical rather than academic, and advocate a robust principled instrumentalism aimed at achieving a desirable political order. Han Fei is committed to making law as determinate and strictly applied as possible. His law is not merely the command of the ruler, is impersonal, uniform, and does not distinguish between persons. The ruler might be anyone, but Han Fei addresses the enlightened, benevolent, or sage ruler who investigates chaos and promulgates clear laws to rescue all living beings. The enlightened ruler eliminates misfortune, prohibits exploitations and oppressions, and cares for the old, the infirm, the orphan, father and son, replacing private interests by men of integrity and public spirit. In contrast to John Austin, Han Fei is confident in "the abilities of ordinary people to be intelligent participants in legal order", and is "as close as any ancient Chinese legal theorist could possibly get to formulating the rule of law ideal." Han Fei says: the most enlightened method of governing a state is to trust measures and not men.

Chinese scholar Peng He (2014) argues against consequentialism. Chinese history views the "just laws" of the royal-blooded Liu Bei more legitimately than the coercive laws of the illegitimate Cao Cao or Sun Quan. Although "Chinese Legalism" is ruler centric, and stresses the requirement of strengthening force, in contrast to force-only western legal theories, still defends the legitimate status of the ruler. Peng He argues for the diversity of norms among Confucianism, Legalism and Daoism, asserting a differentiation between Li (rules of propriety) and Fa as law even Pre-Qin. Legalism can be compared with Daoism and Mohism in believing that Dao should be applied to everyone. But rules, although they should be harmonious with Dao, are different norms. In contrast to the rights and duties of the Confucian family and society, Legalism distinguishes rules and the controlling function of law. It doesn't necessarily reject ethics, but views law as more of a necessarily evil producing a good.

Han Fei's branches of the Fajia

Sinologist Herrlee G. Creel (1970/1974), Chinese scholar K. C. Hsiao (1979), and subsequently Michael Loewe of the Cambridge History of China (1986) consider Han Fei largely responsible for syncretising the "various tendencies" that Sima Tan and Sima Qian grouped together under the Fajia. These stem primarily from what Creel considered to be two disparate contemporary thinkers, Shang (Gongsun) Yang and Shen Buhai, with continued influence after the fall of the Qin dynasty. Han Fei portrays himself as combining the two. The combination is what would commonly be known as the Fajia.

For the sake of categorical presentation, this section accepts this lens, grouping relevant lines of content under Shen Buhai's Shu branch and Shang Yang's evolutionary view of history, albeit with more of other work in Shang Yang's case, who was not Creel's focus. Since Creel's work distinguished the two, it prefaces their comparative subject.

Han Fei says, with a more modern translation;

Now Shen Buhai spoke about the need of Shu ("Technique") and Shang Yang practices the use of Fa ("Standards"). What is called Shu is to create posts according to responsibilities, hold actual services accountable according to official titles, exercise the power over life and death, and examine into the abilities of all his ministers; these are the things that the ruler keeps in his own hand. Fa includes mandates and ordinances promulgated to the government offices, penalties that are definite in the mind of the people, rewards that are due to the careful observers of standards, and punishments that are inflicted upon those who violate orders. It is what the subjects and ministers take as a model. If the ruler is without Shu he will be overshadowed; if the subjects and ministers lack Fa they will be insubordinate. Thus, neither can be dispensed with: both are implements of emperors and kings.

Although their topics are not as narrow as Han Fei presents, 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. His so-called Shu "branch" largely ignored Shang Yang's penal tendency and sometimes even opposed punishments. None of Shen Buhai's successors, Creel says, can be understood as "Legalist" by the English definition of the term; the 1974 review of Ignatius J.H. Tsau (NYSU) even calls Shen anti-legalist, except, notably, insomuch as Shen sees "the problems of government from the point of view of the ruler."

Creel notes, on the other hand, an "impressive body" of early works unanimously testifying Shang Yang's doctrines as described By Han Fei. That is, his doctrine being called Fa, posthumously often described as "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 emphasize his use of harsh penal "law." None indicate concern for organization or control of the bureaucracy.

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", 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 Shih, being "power" or "situational advantage". Despite its necessity, Han Fei say that he speaks on Shih "for mediocre rulers." Moreover, Xun Kuang references Shen Buhai rather than Shen Dao for the origin of the doctrine of power.

As relevant counterpoints, Michael Loewe's 1976 review considered Creel correct to distinguish between the stands of "Legalism", but questions the thrust of tracing lineages between the personas as a historical method, and criticizes the idea of seeing Han figures like Jia Yi or Ch'ao Ts'o - as succesors to Shen Buhai - as specifically Legalist or Confucian (although, the Han period is noted for lacking pure examples of Legalism or Confucianism more generally. Loewe instead 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. Loewe argues that the importance of the period following the Qin, and its historical process, is the consolidation of imperial government, and its acknowledgement as a "respectable norm of administration."

Because, historically, those advocating policies derived of Shang Yang or Shen Buhai did not endorse each other's views, Creel often called the Shen Buhai group "administrators", "methodists" or "technocrats". Although utilizing the idea of the branches, Loewe's work in 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 alone.

Shang Yang's evolutionary view of history

The first chapter of the Book of Lord Shang cites Gongsun as saying: "Orderly generations did not [follow] a single way; to benefit the state, one need not imitate antiquity."

The Oxford (2011) notes that in contrast to the Confucian or Daoist regressive view of history, that of the "Legalists" was "purely descriptive", with the past being neither specifically better or worse than the present. In contrast to Xun Kuang, the supposed teacher of Han Fei, they do not necessarily believe that people are by nature wanton or unruly, only that people are many and resources scarce.

Yuri Pines (2014) considers an "evolutionary view of history", with economic conditions altering moral values, as distinguishing the "Legalists" critically from "proponents of alternative models of state formation"; the majority still believed in the inevitability of innovation and reform, but not necessarily "radical overhaul". The "Legalists" were "more resolute in their willingness to dispense with traditional modes of rule," questioning traditional rule and the relevance of the past to the present, and attacking "supporters of learning from the past" as evolutionarily obsolete.

Hu Shih, whose essay were written between 1919 and 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.

You glorify Nature and meditate on her:

Why not domesticate and regulate her?
You follow Nature and sing her praise:
Why not control her course and use it? … … … …
Therefore, I say: To neglect man’s effort and speculate about Nature,

Is to misunderstand the facts of the universe.

The Shang Yang "school" was favored, though not exclusively, by Emperor Wu of Han.

Shang Yang's early statecraft

Chinese scholar Huang Kejian views figures like Li Kui, Wu Qi, and Gongsun Yang as early Legalists, who did not yet realize the limited potential of Fa for law and the significance of Shu, which Han Fei criticizes Gongsun for lacking, and contributing to the downfall of some of its members, if not the temporary downfall of Qin itself before unifying the empire.

The difference between the Han Feizi and the Book of Lord Shang is "striking".(Creel) Its method for personnel control, let alone control of a bureaucracy, is very simple, largely consisting of reward and punishment, with an emphasis on promoting agriculture and war. Holding decline to have resulted from a scarcity of resources, Gongsun prescribed statecraft distinguished by his heavy emphasis on penalty and mutual responsibility (among both minister and population), instituting severe punishment for the Qin state (later reduced).

Similarly to Gongsun, in Han Fei's view; if people were generous in the past, and dishonest in the present, it is because resources were previously abundant. Their approach to government in relation to this therefore does not rest on human nature apart from reward and punishment. In contrast to moral order, Sinologist A.C. Graham distinguishes the "Legalists" more generally by this state order of reward and punishment, being the Two Handles.

Gongsun ultimately did not believe that the method of rule really mattered as long as the state was rich, and tried to dispense with the selection of exceptional men through insurance mechanisms while attacking moral discussion as empowering ministers. In contrast to Gongsun, though seeking at the motivation of his subjects, Han Fei is much more skeptical of self-interest. Gongun's anti-bureaucracy may be seen as a precursor to that of Han Fei, and together with their predecessor Mozi may be characterized as following a philosophical tradition of "objective, public, accessible standards" (Fa).

Shen Buhai's Shu or technique branch

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).

The concept of Wu Wei, or indeed concern for bureaucracy outside penal solutions, is "entirely absent"(Creel) from the Shangjunshu, and the Han Feizi attributes Wu Wei specifically to Shen Buhai. However, unlike Shang Yang and Han Fei, although considering ministers a great danger, Shen did not consider the relationship between ruler and minister antagonistic necessarily.

Also in contrast to Shang Yang, Shen Buhai still espouses there to be one method of rule alone.

Noteable influences

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, Ch'ao Ts'o, 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.

Emperor Qinshihuang erected an inscription naming himself as taking control of the government and for the first time establishing Xing-Ming, a term for Shen Buhai's method also 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 was 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 son, Liu Yi/Prince Huai of Liang.

Heir successor Emperor Jing of Han also had two mentors in the doctrines of Shen Buhai, and appointed another "Legalist", Ch'ao Ts'o. Ch'ao Ts'o is regarded by the Hanshu as a student of the doctrines of Shen Buhai, Shang Yang and Xing-Ming.

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, it is their 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

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, being the ideological root of Shen Buhai and Han Fei's personnel management. 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, perhaps as a slander, 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.

Confucian-Mohist antecedent

Mohist predecessors

Between Mozi's background as an engineer and his pacifist leanings, the Mohists became experts at building fortifications and sieges.

Small seal scripts were standardized by Li Si after the First Emperor of China gained control of the country, evolving from the larger seal scripts of previous dynasties.

The 12 characters on this slab of floor brick affirm that it is an auspicious moment for the First Emperor to ascend the throne, as the country is united and no men will be dying along the road.

Based on the work of Jean Escarra and A. F. P. Hulsewé, Herrlee G. Creel considered the contributions of the Shang Yang wing to jurisprudence considerable, but notes that traditional Chinese thought never fully accepted the Shang Yang wing of the so-called "Fajia." While perhaps more developed administratively until the industrial age, Imperial China's governmental machinery, essentially developed by the Qin, had a less prominent role for jurisprudence and law than in the west.

The work of the Fajia work has implications for the work of judges, but "contains no explicit judicial theory". Their governance was focused on large areas, and it would be wrong, Feng Youlan says, to associate the "Legalist" school with jurisprudence. The statesmen were concerned mainly with administration, such that continuing to mistranslate the much broader concept of Fa as law would mislead readers as to their theories. Even the more "Legalistic" Book of Lord Shang still engages statutes more from an administrative standpoint, as well as addressing many other administrative questions.

Robert Eno of Indiana University writes that "If one were to trace the origins of Legalism as far back as possible, it might be appropriate to date its beginnings to the prime ministership of Guan Zhong (720–645 BCE)", who "may be seen as the source of the notion that good government involved skilled systems design". The reforms of Guan Zhong applied levies and economic specializations at the village level instead of the aristocracy, and shifted administrative responsibility to professional bureaucrats. He valued education. The Guanzi lists seven kinds of Fa: principles of nature, models, mensuration, tutelage, incentives and deterrents, units of calculation, and xinshu, or "techniques of the heart-mind." Only incentives or deterrents may be broadly applicable to a more "legalistic" practice.

Modernly, the Mohists, of Mozi (c. 470 BC – c. 391 BC), a school of political-religious engineers and logicians, and the (much later) Guanzi text are of particular importance to understanding Fa, as meaning "to model on" or "to emulate". Compared by Sinologist Chris Fraser with Plato, the hermeneutics of the Mohists contained the philosophical germs of what Sima Tan would term the "Fa-School", initiating philosophical debate in China, positing some of its first theories, and contributing to the political thought of contemporary reformers . Dan Robins of the University of Hong Kong considers Fa to have become "important in early Chinese philosophy" largely because of the Mohists.

The Mohists advocated a unified, utilitarian ethical and political order. To unify moral standards, they supported a "centralized, authoritarian state led by a virtuous, benevolent sovereign, managed by a hierarchical, merit-based bureaucracy". That social order is paramount seems to be implicit, recognized by all. They argued against nepotism, and for universal standards (Fa including meritocracy) as represented by the centralized state, saying "If one has ability, then he is promoted. If he has no ability, then he is demoted. Promoting public justice and casting away private resentments – this is the meaning of such statements."

Mozi considered the elucidation of different "types" or "classes" to be the basis of both cognitive thinking and sociopolitical practice. Referring to an easily projectable standard of utility, the Mohists explain "Fa" as compasses or circles, and may be prototypes, exemplars, or (specific) analogies. What Fa made possible was the accurate following of instructions. With minimal training, anyone can use Fa to perform a task or check results. What Guan Zhong and later Mozi recommended were objective, reliable, easily used, publicly accessible standards, or models, called Fa, whose adherents would come to oppose what Sinologist Chad Hansen terms the "cultivated intuition of self-admiration societies", expert at chanting old texts.

At the time, this group was identified as Ru, and would come to be named after its most distinguished proponent, Confucius. The Confucians generally opposed Fa as authoritarian. But for Guan Zhong and Qin-era Confucian apologist Xun Kuang, Fa could complement any traditional scheme, and both use Fa alongside the more valued metaphysical Confucian Li (the unique principles or standards of things, being their determinant and differentiating them) without considering Fa as "an alternative form of social control."

Mohist hermeneutics (Fa) vs Confucian Li

Mohism or the thought of the Fajia is not based on entities, transcendentals or universals, but parts or roles ("names"), and are therefore relatable to the Confucian rectification of names, which arguably originates in Mozi's development of Fa. For the most part Confucianism does not elaborate on Fa (though Han Confucians embraced Fa as an essential element in administration), though the idea of norms themselves being older, Fa is theoretically derived from the Confucian Li. However, the "core assumption" of Confucianism in rectifying names was that the ruler was supposed to use innate or developed intuition to "settle correct language use".

Rejecting the Confucian idea of parents as a moral model as particular and unreliable, the driving idea of the Mohists was the use of hermeneutics to find objective models/standards (Fa) for ethics and politics, as was done in any practical field, to order or govern society. These were primarily practical rather than principles or rules, as in the square and plumb-line. The Mohists used Fa as "objective, particularly operational or measurement-like standards for fixing the referents of names", or "determining the application of terminology", hoping that analysis of language standards (Fa) would yield some objective way (dao) of moral reform. For Mozi, if language is made objective, then language itself could serve as a source of information and argued that in any dispute of distinctions, one party must be right and one wrong.

Although socially basing it in the ruler (who may not in practice be the monarch), or at least superior, Fa is never merely arbitrary or the ruler's desire, nor does it aim at an intellectual grasp of a definition or principle, but the practical ability to perform a task (dao) successfully, or to "do something correctly in practice" — and in particular, to be able to distinguish various kinds of things from one another. Measuring to determine whether distinctions have been properly drawn, Fa compares something against itself, and judges whether the two are similar, just as with the use of the compass or the L-square. What matches the standard is then the particular object, and thus correct. This constituted the basic conception of Mohist's practical reasoning and knowledge.

Of particular concern for the Fajia and the Mohists, the fourth century witnessed the emergence of discussions polarizing the concepts of self and private, commonly used in conjunction with profit and associated with fragmentation, division, partiality, and one-sidelines, with that of the state and "public", represented by the duke and referring to what is official or royal, that is, the ruler himself, associated with unity, wholeness, objectivity, and universality. The latter denotes the "Universal Way". Legalism and Mohism are distinguished by this effort to obtain objectivity.

Mozi said,

Those in the world who perform tasks cannot do without models (Fa) and standards. There is no one who can accomplish their task without models and standards. Even officers serving as generals or ministers, they all have models; even the hundred artisans performing their tasks, they too all have models. The hundred artisans make squares with the set square, circles with the compass, straight lines with the string, vertical lines with the plumb line, and flat surfaces with the level. Whether skilled artisans or unskilled artisans, all take these five as models. The skilled are able to conform to them. The unskilled, though unable to conform to them, by following them in performing their tasks still surpass what they can do by themselves. Thus the hundred artisans in performing their tasks all have models to measure by. Now, for the greatest to order (zhi, also 'govern') the world and those the next level down to order great states without models to measure by, this is to be less discriminating than the hundred artisans.

Comparative views: Mohist vs "Legalist" Fa

The influence of the Mohists on the Fajia is likely strong. Though Masayuki Sato translates Fa as law, he explains the concept as more like an objective measuring device. Sinologist Mark Edward Lewis writes: language, such as that of a legal code, is linked to social control. Modern law may be regarded in part as "purified", rectified, or technically regulated language." However, for pre-legal Han state prime minister Shen Buhai, who Han Fei criticized for not standardizing the Fa, correct or perverse words will order or ruin the state. If words are not correct, they do not correspond to reality, and regulation fails.

Bejamin Schwarz (1985) and A.C. Graham (1989) view Fa from the perspective of institutional shift. Schwarz notes the inaccuracy of law in many cases, translating it as model, standard, copy, 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. Starting as "the old word for a model or standard for imitation", Graham views Chinese thought as working in pairs, with Fa shifting from persons to be imitated towards impersonal relations of bureaucracy, "contracting" standards towards law as paired with and backed by parallels of reward and punishment.

As a kind of Occam's Razor, Sinologist Chad Hansen (1992) drops Legalist associations. Despite the framing of Han historians, with roots in Guan Zhong and Mozi, they would all appear to use Fa in the same administrative fashion. The Fajia did not seem to think they were using Fa differently, measuring to establish objects of administration and comparing them. Confucian reformer Xun Kuang is enthusiastic about punishment, but Fa remains distinct as a concept, unlike penal law which is by definition backed by categories and distinctions of punishment. Han Fei credits Gongsun with using Fa as a technique of rule rather than penal usage; i.e. Gongsun's Fa is still separate from punishment as a concept. His reliance on punishment as a mode of rule is overstated; the populace is viewed as cooperative. Shang Yang was more concerned with knowledge of the Fa as to hold ministers to it.

Chinese Scholar Huang Kejian (2016) suggests the main difference, although considering it radical himself, between the Fa of the Mohists and that of the "Legalists" is that the Mohists took "Heaven" as their ethical/sociopolitical standard, while the Legalists are only concerned with consequences. The Fajia's standard, though measured, may be considered "arbitrary", a point Chad Hansen elaborates although otherwise considering their use identical. However, as Hu Shih highlights, while the schools may have initially had more religious interest, the Confucians would largely take interest in ethics and politics, and the Mohists would largely be concerned with logic problems, becoming master logicians (like the school of names), scientists and engineers who "thought very little of their religion."

Qin legal practice

Contrary to the idea of its practice in the Warring States period, Sinologist Chad Hansen argues that it is the Qin Empire under Li Si that may be understood as having come to institute Lu, or (the ancient Chinese conception of) laws, a new term for a new, universal institution, rarely used in older texts.

Regardless, Cambridge (Loewe) still notes one example of an excavated Qin "laws" as consisting of twenty-five abstractly formulated model patterns based on actual situations. Contrary to what would be expected of a monolithic "traditional account of Shang Yang's policies alone", the "laws" are pragmatic and eclectic, and more than purely punitive, indicating an interest in "quantitative technique", and a "sophisticed political outlook." Although harsh, they are not harsher than the time. But their application to "legal practice" consists in guidance.

In an example of a more Confucianistic case of a father denouncing a son as unfilial, the son is interrogated and found to be unfilial. It notes the ranks and wards of the persons, the accusations, and the desired outcome by the father for execution. The outcome might be assumed to be execution, but the behavior is not listed, the behavior warranting the term unfilial is not listed, and the outcome of the case is not listed.

Confucian-Mohist precedent

Feng Youlan (1948) characterizes the Fajia or "Legalist school" as "deriving from a group of statesmen who maintained that good government must be one based on a fixed code of law (or pattern, Fa) instead of the moral institutions which the literati stressed for government."

Still, Sinologist Chad Hansen (1992) does not consider the difference between the Fajia and the Confucians "as deep as the Western legal positivists contrast between law and morality." The ancient Chinese acted on a variety of "rival social codes" requiring interpretation, with a focus on terminology. The Confucians, Mohists, and Han Fei all consider social order their goal, with the difference, Hansen considers, being an emphasis on education and the use of intuition. The Confucian scholar class engaged in a flexible interpretation of traditional codes, while others sought to fix a changeable code in the ruler.

But although warning against punishments and practical measures, Confucius accepts and even praises Zhou loyalists like Guan Zhong who practice Fa as Confucians; it is the later Mencius who takes him as representing "the first move toward the realistic techniques of gathering power." Although essentially appealing to "stable, strong, public institutions of social regulation," the Guanzi, possibly written after the Han Feizi, still does not appear to make great distinction between the various social codes, only the "range of application, source, and subject matter." In the era of the Qin ascendancy, the difference between "explicitly anti-Confucian" Han Fei and Qin-influenced Confucian Xun Kuang becomes, Hansen says, whether to use Fa and punishment alone, centered on the ruler, or Fa combined with the Confucian scholar classes' techniques of education and inculcation, with Xun Kuang accepting the role of punishment.

With many of the "Legalists" having a "close ideological relationship with pre-Han classical Confucians", Bo Mou (2009) in The Routelege History of Chinese Philosophy considers Legalism a complementary, law-governing, dimensional extension of Confucianism to statecraft, and more of an "art of rulership than separate philosophical doctrine."

Shen Buhai and Shang Yang

Despite history's glossing of Shen Buhai with others of the Fajia, receiving him as a cryptic Daoist using terms like Wu Wei and Dao, Herrlee G. Creel considered Shen to still have more in common with the Confucians than the later Fajia. Apart from his influence by the Logicians, in contrast to Confucius, Shen never mentions virtue, and insists on constant vigilance over ministerial performance. But in contrast to Shang Yang, no text identifies him with penal law, and like Confucius Shen still emphasizes the importance of selecting able officials. Shang Yang does not.

Shen likely predated the Dao De Ching or Zhuangzi. On the other hand, Creel notes the Analects of Confucius as preceding Shen in advocating for a reduced activity on the part of the ruler, even if he considers Shen's Wu Wei drastically revised in practice. The Analects quote Confucius as saying: "Was it not shun who governed by means of Wu wei yet ruled well? What did he do? He merely corrected his person and took his proper position (facing south) as ruler." Apparently paraphrasing the Analects, Shen Buhai's statement that those near him will feel affection, while the far will yearn for him, stands in contrast to Han Fei, who considered the relationship between the ruler and ministers irreconcilable.

Although expressing anti-Confucian sentiment, Shang Yang was supposedly taught by a Confucian syncretist, Shi Jiao, who, stressing the importance of "name" (rectification of names), connected it with reward and punishment. In contrast to the Han Feizi, though considering them to be "digressions of minor importance", Yuri Pines notes in Legalism in Chinese Philosophy that the Book of Lord Shang "allowed for the possibility that the need for excessive reliance on coercion would end and a milder, morality-driven political structure would evolve."

Mencius

Although the period generally distinguishes physical categories from others, Fa is also included in the Confucian Canon, albeit only twice directly in the Analects, and A.C. Graham takes particular note of the precedent of Mencius in his covering of the "Legalists". Mencius compares the craftsman's clear eye and skill of hand, requiring the carpenter's compasses and L-square, with the ruler's benevolent heart.

Mencius elaborates seven categories of Fa, which include such items as the Qi of Heaven and earth, the harmonising of cold and hot, the natures of water and soil; models like exemplars, names, resemblances, characteristics; standards like units of measurements, compasses and squares, scales, volumes; transformations like imbuing, rearing, wearing away, prolonging, tearing; incentives and deterrents, giving or taking, endangering or securing, benefiting or harming, opening or closing; "methods of the heart", being genuine and sincere, generous and bountiful; statistics including consistencies, weights, sizes, densities, distances, quantities.

The Han Feizi

While Shang Yang stresses transition towards a punishment-based state minimalism, Sinologist Chad Hansen considers Han Fei more Confucian, more Mohist, and more totalitarian precisely on account of stressing both reward and punishment, which encourages virtue rather than just preventing wrongdoing even if Han Fei doesn't believe in relying on virtue. The greater inclusion of reward indicates a state leadership with concerns which cover a "whole range" of behavior beyond Shang Yang's objects of war, agriculture, and reduction of ministers; to quote Han Fei, "carpenters have manual skill; physicians know how to prepare drugs; but, if men are ordered to take up these professions on account of their merits in beheading, then they do not have the required abilities."

Apart from his supposed teaching by Confucian Xun Kuang, which Hansen apparently finds plausible enough, Han Fei's theory of utilizing Fa to establish names for the settling of disputes would be recorded as supposedly drawn from Confucius' establishing of names by rites, the difference being that the Confucian ruler was supposed to use cultivated intuition to settle terms, while Shen Buhai and Han Fei place responsibility for settling the terms of a job on the minister. Although the tight, centralized control conflicts with the Confucian idea of the autonomous minister, Han Fei's Xing-Ming, or personnel control, is in line with both the Confucian and Mohist rectification of names, and is relatable to the Confucian tradition in which a promise or undertaking, especially in relation to a government aim, entails punishment or reward.

The Mozi and the Guanzi suggest that people will conform to standards from above if administration is precise, or even just a ruler-like attitude. Although Han Fei clearly favors punishment, it may nonetheless still be regarded as secondary; Han Fei's sociological theory merely substitutes the traditional authorities of Confucianism with the doctrine of situational authority (shi), or societal, authoritarian inculcation, that he would associate with Shen Dao, as a source of social conformity. Together with language authority guiding "role performance", they may be taken as derived more ultimately from Confucianism and Mohism.

Despite being "anathema" to some of the Fajia, Confucianism, with its social and moral values, coexisted "remarkably well" during the reign of the First Emperor, with one of his letters circulated in the commanderies extolling Fa as upholding Confucian values. Some Qin model patterns are seen to uphold filial piety.

Mohist hermeneutics (Fa) vs Western law

In contrast to a more Western understanding of law, with penal law in particular backed by punishment, while other terms might denote mere command, the essential characteristic of Fa is measurement, and even the Confucian Xun Kuang distinguished Fa from regulations and punishment in his usage. The Fajia do not contrast "penal law" with the Confucian Li, which may be described as elite, ancient, traditionalist, intuitive-moral, ritualistic. Rather, Shang Yang and Han Fei contrast the Confucian Li, and the "authority of traditional content" (Hansen), with the "publicity, objectivity and accessibility" of Fa, measurement standards, and their aim of maximizing the wealth and strength of the ruler and state. Contrasting Fa with private distortions and behavior, theoretically, the Fa of the so-called Fajia exactly follows Mozi.

Shang Yang's systematic application of penalties increase the tendency to see it as penal, but arguably does not change meaning from that of the Mohists. Shang Yang's innovation was not penal law. Rather, Shang Yang's idea was that penal codes should be reformed to have the same kind of objectivity, clarity and accessibility as the craft-linked instruments. Shang Yang and Han Fei intended their "codes" be "self-interpreting" (Hansen). Applied to economy and institution, Shang Yang's Fa is total and anti-bureaucratic, calculating rank mathematically from the adherence to standards (Fa) in the performance of roles (names or models), namely that of soldiers and (to a lesser extent) farmers. Translation regardless, Han Fei credits Shang Yang with the practice of Fa, not law, in statecraft.

Han Fei shows no revolutionary insight into rules; objectively-determined "models" (Fa) or "names" (titles/roles), being measured against, replace intuitive guidance, especially that of the ruler. It is these that enable control of a bureaucracy. Carine Defoort of New York University explains:

Names are orders: by manipulating a network of names from his polar position, the ruler keeps everything under control. While his orders descend step by step through the official hierarchy to the furthest corners of the realm, performances ascend to be checked by him.

Because Fa is necessary for articulating administrative terms, it is presupposed in any application of punishment, and Han Fei stressed measurement-like links between rewards and punishments and performance. Applied through incentives and disincentives, Fa provided guidance for behavior, the performance of civil and military roles, and advancement.

Sinologist Chad Hansen considers the Guanzi to advocate Fa, or objective standards, but not law. Aiming to control criminals and officials without resentment, the closest it comes to legal retribution would be the Confucianistic idea that punishments should be appropriate to the name of the punishment, a central theme of the Han Feizi. But this aims more at warning than proportion. Suffice to say, it isn't assumed that punishment backs regulations as the "only viable motivation for people's obedience."

Huang Kejian: The Implications of Roman Law and Legalist Fa

Sinologist Chad Hansens does not view ancient Chinese moral or political philosophy as using notions of individual or universal principles, rules, duties, obligations, legal rights, or conceptions of belief, desire, raison d'etre, or retribution presupposing freedom, autonomy, dignity, moral and rational agency or responsibility, any of which would be essential to the modern Western concept of law. Moreover, although the Chinese are capable of a desire for vengeance, their "historical tradition, moral attitudes and philosophical arguments" are not fixated on it as in the west.

As a counterpoint, although not translating Fa as law, Hansen still considers the Book of Lord Shang reminiscent of a "rights-based, liberal conception of the rule of law"; the book says: "The multitude of people all know what to avoid and what to strive for; they will avoid calamity and strive for happiness, and so govern themselves."

Chinese scholar Huang Kejian discusses the differences between Fa and Roman law in the translated work, From Destiny to Dao (2016), in a chapter on The Different Implications of Roman Law and the Legalist Fa.

As previously noted, some, particularly outside the "Legalist" core, may use virtue alongside Fa. But, as Huang notes, while the "Legalists" might speak of Sages who governed their states, they dispose of the Confucian Sage, leaving a sage who only practices statecraft. Although its practice might be effective in a feudal state, it is assumed that good management only comes from strategies able to manage a majority, and the Fajia proper ignore the teaching of ethical conduct and other methods as impractical.

Essentially, Fa asks the results and not the motivation, de-emphasizing concepts like virtue. "Completely ignoring issues pertaining to an individual's existence", the scope of Fa will be limited; its emphasis on measurement to the exclusion of other considerations will reduce the potential development of law, and its "legal" usage does not tend to move beyond penal codes toward a system of civic regulation. This will tend to orient the usage of Fa towards Shu, or tact and method in managing a bureaucracy.

Huang concludes that Fa "has no recognizable connection to the modern concept of law." An accessory to wealth and strength, it does not inspire or concern itself with a conception of rights, nor does "rectifying chaos" or correcting weights promise justice, a value Huang considers "intricately tied" to Roman law.

Historical reception as Daoistic

Along with the concept of Wu Wei, Shen Buhai and others of the "Fajia" would historically be supposed to have originated in Daoism, and earlier scholars like Feng Youlan, J. J. L. Duyvendak and Arthur Waley followed this assumption, with Waley considering the Fajia to "Seek a foundation in Daoist mysticism." However, this assumption was based on an earlier dating of the Daodejing, and few critical scholars believe for instance that a Lao Tzu was a contemporary of Confucius.

The Han Feizi has a commentary on the Dao De Ching, but references Shen Buhai rather than Laozi for Wu wei. Since the bulk of both the Dao De Ching and the Zhuangzhi appear to have been composed later, Herrlee G. Creel believed that it may therefore instead be assumed that Shen Buhai influenced them rather than the other way around. Indeed, Creel says, a number of scholars view political Daoism as a reaction to the governmental controls of the Fajia.

Though not a conclusive argument against proto-Daoist influence, Creel did not consider Shen Buhai's "Daoist" terminology to show evidence of explicit Daoist usage, lacking any metaphysical connotation; i.e. Confucianism also uses concepts like "Dao", or Wu wei, and Shen appears to reference them instead. Shen used the term Wu wei to mean that the ruler, though vigilant, should not interfere with the duties of his ministers. Creel believed that Shen's correlation between Wu-wei, or the reduction of the ruler's activity, and ming-shi (Name and Reality, the Mohistic functions he used for personnel management), likely informed the Daoist conception of the formless Dao that "gives rise to the ten thousand things".

Given archaeological indication that the Daodejing of the Warring States era may have been in reverse, that is, with its political section first, Sinologist Chad Hansen goes as far as to conclude that what Han dynasty historiographers Sima Tan and Sima Qian established as the Fajia and the Daojia may not have been taken as separate ideologies by Warring States scholars. Although Han Fei has less interest in the Daodejing's theories on the limits of language, both the Han Fezi and the Laozi discredit the cultivated intuition of the Confucian scholars, and have an antipathy for education; with the Laozi advocating more for "natural" spontaneity, and the Han Feizi more for control as is in line with Confucian and Mohist quest for social order.

Hu Shih present's Han Fei's commentaries on the Daodejing as attempting to develop a different metaphysics from the historically accepted, interchangeable terms usage of Mencius, differentiating Dao from Lei, elaborating Mencius as using Lei in the sense of a common right and wrong. Han Fei only takes Lei to mean a cause of things. Historically, Dao would be interchangeable with Lei.

The Han dynasty statesman Jia Yi describes Shen Buhai's Shu as a particular method of applying the Dao, or virtue, bringing together Confucian and Daoist discourses. 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."

Although becoming known as "Legalist", the Guanzi was classed as Daoist in the Han bibliography.

R. P. Peerenboom still believes that Shen Buhai "shares many traits" with the Huang-Lao, but doesn't immediately go into details, and notes Shen as more pragmatic, lacking their metaphysical, naturalist or ethical content.

Referencing Jian Bozan, more modernly Chinese scholar Peng He takes "Legalism" as originating from a secondary branch of Daoism which argues for governance through less intervention by the ruler, with the "Legalist" Shen Dao accomplishing this through "legislation." Despite noting that Shang Yang (and therefore Shen Buhai) preceded Zhuang Zhou, who Peng takes as a founder of Daoism, along with Shen Dao, Peng still takes Shen Buhai and Shang Yang as having studied Daoism. However, although interesting as an example Chinese perspective, Peng does not present any evidence for these influences, or that Shen Buhai or Shang Yang studied Daoism, apart from referencing the partisan, daoistic or Huang-Lao Sima Qian's Records of the Grand Historian.

Shang Yang

Small bronze plaque containing an edict from the second emperor of the Qin dynasty. 209 BCE.

Terracotta Army

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 was what the sovereign commanded, and this meant absolutism, but it was an absolutism of law as impartial and impersonal. Gongsun discouraged arbitrary tyranny or terror as destroying the law. 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. Shang Yang also corrected measures and weights.

Shang Yang and Han Fei's 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.

Assessments

Keeping in mind the time from which he is speaking, A. F. P. Hulsewé called Shang Yang the "founder of the school of law", and considers his unification of punishments one of his most important contributions; that is, giving the penalty of death to any grade of person disobeying the king's orders. Shang Yang even expected the king, though the source of law (authorizing it), to follow it. This treatment is in contrast to ideas more typical of archaic society, more closely represented in the Rites of Zhou as giving different punishments to different strata of society.

Hulsewe points out that Sima Tan considered equal treatment the "school of law's" most salient point: "They do not distinguish between close and far relatives, nor do they disriminate between noble and humble, but in a uniform manner they decide on them in law." The Han dynasty adopted essentially the same denominations of crimes, and conception of equality, as Shang Yang set down for Qin, without collective punishment of the three sets of relatives.

Shang Yang appeared to act according to his own teachings, and translator Duvendak (1928) references him as being considered "like a bamboo‑frame which keeps a bow straight, and one could not get him out of his straightness", even if spoken of by some pre-modern Chinese in ill regard with the fall of Qin. Duvendak believed that Shang Yang should be of interest not just to Sinologists, but Western Jurists as well.

Shen Buhai

Han state bronze candle holder

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. 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. Creel describes 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.

Well aware of the possibility of the loss of the ruler's position, and thus state or life, from said officials, Shen says:

One who murders the ruler and takes his state ... does not necessarily climb over difficult walls or batter in barred doors or gates. He may be one of the ruler's own ministers, gradually limiting what the ruler sees, restricting what he hears, getting control of his government and taking over his power to command, possessing the people and seizing the state.

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.

Shu or "Technique"

As previously noted, 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". Given more material on Han Fei, and his coining of the term anyway, our discussion here relies more him. Since Shen actually uses Fa, the discussion is much the same, and may also be translated as Shu (methods). Shu implies that the ruler cannot use his own reactions in making judgements, relying on objective measurement standards(Fa), without which the theory is nonsensical. The standards cannot merely be his desires or the interpretation of partisans. Despite this, the ruler may still have to rely on careful judgement of interests.

Shu is otherwise the heritage of the Confucian and Mohist theories of advancing the worthy. It includes Wu-wei, which enhances Shi (situational authority), but although Shen Buhai and Han Fei emphasize secrecy, Han Fei does not specifically name Shu as including Shen Buhai's concept of showing nothing, or not revealing personal biases, which is more in the way of strategic advice.

Sinologist Herrlee G. Creel believed the 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 that command of finance was 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.

Zhaungzi 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.

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. 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.

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.

Wu Guanyin, an associate of Liang Qichao, distinguishes individual virtue from the techniques of unadulterated power (quanshu) that "characterize the political-institutional realm." Invoking an opposition between "society" and "politics", Wu insists that politics should be avoided in favor of cultivating virtue. Producing power-pressures, politics are inimical to virtue and the preservation of dao.

Following after proposals to supervise

Liu Xiang wrote 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)."

Literally meaning "to follow after" or imitate, Creel (1970) translates the phrase as relying on going along with, but confusingly shortens it to relying on persuasion, saying "One who persuades does not directly oppose those he would influence, rather he agrees, 'goes along with' them initially, or at least seems to." More modernly Goldin (2011) notes 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." Creel's 1974 work elaborates the ruler as more rubber-stamping proposals and following after the results; directly engaging the ministers or their proposals endangers the ruler and the automatic system.

The term for supervise and hold responsible would typically imply examination into guilt and subsequent punishment, but given the latter's rejection (execution for mistakes may inhibit work), Creel elaborates Tu Tse here implying examination into the performance of offices or titles debted to the ministers, a translation derived of Derk Bodde's work.

Xing-Ming (Historical background)

"The Way of Listening is to be giddy as though soused. Be dumber and dumber. Let others deploy themselves, and accordingly, I shall know them."

Right and wrong whirl around him like spokes on a wheel, but the sovereign does not complot. Emptiness, stillness, non-action—these are the characteristics of the Way. By checking and comparing how it accords with reality, [one ascertains] the "performance" of an enterprise.

Han Fei

Detail of The Spinning Wheel, by Chinese artist Wang Juzheng, Northern Song Dynasty (960–1279)

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.

Shen actually used an older, more philosophically common equivalent, ming-shi, (simplified Chinese: 名实; traditional Chinese: 名實; pinyin: míngshí) 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.

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."

Robin Yates suggests it otherwise derives from the use of military flags and pennants in war, as in a military method of organization, in the fifth century B.C.

Name and reality (Ming-shi)

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.

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 the not the way to rule."

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.

In Chinese Thought: An Introduction, S. Y. Hsieh suggests a set of assumptions underlying the concept of (xing-ming): In a large community, a group of officials has to be responsible for a wide range of things to allow them to live together peacefully, with a leader that issues orders, and assigns responsibilities and awards corresponding to capabilities demonstrated by performance. Because it is necessary to recruit from the whole population, bureaucratic government marks the end of feudal government.

Wu wei (inaction)

Zhaoming mirror frame, Western Han dynasty

Further information: Wu wei

Sinologist Chad Hansen characterizes Shen Buhai's Shu or techniques, aimed at "preventing the usual drain and flow of the ruler's power to ministers", primarily as Wu Wei, and secondarily a rectification of names for personnel control. Wu Wei's Confucian antecedent 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.

Sinologist Herrlee G. 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:

The ruler is like a mirror, reflecting light, doing nothing, and yet, beauty and ugliness present themselves; (or like) a scale establishing equilibrium, doing nothing, and yet causing lightness and heaviness to discover themselves. (Administrative) method (Fa) is complete acquiescence. (Merging his) personal (concerns) with the public (weal), he does not act. He does not act, and yet as a result of his non-action (wuwei) the world brings itself to a state of complete order.

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. Although less antagonistic than his successors, 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. 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 portrays the ruler as putting up a front to hide his dependence on his advisers. Aside from hiding the ruler's weaknesses, Shen's ruler, therefore, makes use of method (Fa) 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.

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, Herrlee 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. 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.

If the ruler's intelligence is displayed, men will prepare against it; If his lack of intelligence is displayed, they will delude him. If his wisdom is displayed, men will gloss over (their faults); if his lack of wisdom is displayed, they will hide from him. If his lack of desires is displayed, men will spy out his true desires; if his desires are displayed, they will tempt him. Therefore (the intelligent ruler) says "I cannot know them; it is only by means of non-action that I control them."

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.

Shen Dao

Iron weight dated from 221 BCE with 41 inscriptions written in seal script about standardizing weights and measures during the 1st year of Qin dynasty "Where there is a scale, people cannot deceive others about weight; where there is a ruler, people cannot deceive others about length; and where there is Fa, people cannot deceive others about one's words and deeds." Shen Dao

Mold for making banliang coins

Shen Dao (350 – c. 275 BCE) argued for Wu wei in a similar manner to Shen Buhai, saying

The Dao of ruler and ministers is that the ministers labour themselves with tasks while the prince has no task; the prince is relaxed and happy while the ministers bear responsibility for tasks. The ministers use all their intelligence and strength to perform his job satisfactorily, in which the ruler takes no part, but merely waits for the job to be finished. As a result, every task is taken care of. The correct way of government is thus.

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.

If one rabbit runs through a town street, and a hundred chase it, it is because its distribution has not been determined ... If the distribution has already been determined, even the basest people will not go for it. The way to control All-under-Heaven and the country lies solely in determining distribution.

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.

The state has the li of high and low rank, but not a li of men of worth and those without talent. There is a li of age and youth, but not of age and cowardice. There is a li of near and distant relatives, but no li of love and hate.

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".

When an enlightened ruler establishes [gong] ("duke" or "public interest"), [private] desires do not oppose the correct timing [of things], favoritism does not violate the law, nobility does not trump the rules, salary does not exceed [that which is due] one's position, a [single] officer does not occupy multiple offices, and a [single] craftsman does not take up multiple lines of work ... [Such a ruler] neither overworked his heart-mind with knowledge nor exhausted himself with self-interest (si), but, rather, depended on laws and methods for settling matters of order and disorder, rewards and punishments for deciding on matters of right and wrong, and weights and balances for resolving issues of heavy or light ...

The reason why those who apportion horses use ce-lots, and those who apportion fields use gou-lots, is not that they take ce and gou-lots to be superior to human wisdom, but that one may eliminate private interest and stop resentment by these means. Thus it is said: "When the great lord relies on fa and does not act personally, affairs are judged in accordance with (objective) method (fa)." The benefit of fa is that each person meets his reward or punishment according to his due, and there are no further expectations of the lord. Thus resentment does not arise and superiors and inferiors are in harmony.

If the lord of men abandons method (Fa) and governs with his own person, then penalties and rewards, seizures and grants, will all emerge from the lord's mind. If this is the case, then those who receive rewards, even if these are commensurate, will ceaselessly expect more; those who receive punishment, even if these are commensurate, will endlessly expect more lenient treatment... people will be rewarded differently for the same merit and punished differently for the same fault. Resentment arises from this.

Doctrine of position (shi)

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

Jacques Gernet (1982) 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. Fa shifts from examples of actions and persons to be imitated towards impersonal relations of bureaucracy, backed by reward and punishment. 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.

In the words of Han Fei,

The reason why I discuss the power of position is for the sake of ... mediocre rulers. These mediocre rulers, at best they do not reach the level of [the sages] Yao or Shun, and at worst they do not behave like [the arch-tyrants] Jie or Zhou. If they hold to the law and depend on the power of their position, there will be order; but if they abandon the power of their position and turn their backs on the law (Fa), there will be disorder. Now if one abandons the power of position, turns one's back on the law, and waits for a Yao or Shun, then when a Yao or a Shun arrives there will indeed be order, but it will only be one generation of order in a thousand generations of disorder ... Nevertheless, if anyone devotes his whole discourse to the sufficiency of the doctrine of position to govern All-under-Heaven, the limits of his wisdom must be very narrow.

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) 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.

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.

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 otherwise have been borrowed from the Book of Lord Shang, originating in Shang Yang and Shen Dao's abandonment of a singular Fa, or Standard, as correct.

For Shen Dao, "Power" (勢 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 理]. ... 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.

Chad 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, its Dao emphasizes autocracy ("Tao does not identify with anything but itself, the ruler does not identify with the ministers"). Randall P. 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".

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

Tao exists in invisibility; its function, in unintelligibility. Be empty and reposed and have nothing to do-Then from the dark see defects in the light. See but never be seen. Hear but never be heard. Know but never be known. If you hear any word uttered, do not change it nor move it but compare it with the deed and see if word and deed coincide with each other. Place every official with a censor. Do not let them speak to each other. Then everything will be exerted to the utmost. Cover tracks and conceal sources. Then the ministers cannot trace origins. Leave your wisdom and cease your ability. Then your subordinates cannot guess at your limitations.

The bright ruler is undifferentiated and quiescent in waiting, causing names (roles) to define themselves and affairs to fix themselves. If he is undifferentiated then he can understand when actuality is pure, and if he is quiescent then he can understand when movement is correct.

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 (Chinese: 刑名; pinyin: xíngmíng) 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".

If the ruler wishes to bring an end to treachery, then he examines into the congruence of the congruence of hsing (form/standard) and claim. This means to ascertain if words differ from the job. A minister sets forth his words and on the basis of his words, the ruler assigns him a job. Then the ruler holds the minister accountable for the achievement which is based solely on his job. If the achievement fits his job, and the job fits his words, then he is rewarded. If the achievement does not fit his jobs and the job does not fit his words, then he will be punished.

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"

A modern statue of the First Emperor and his attendants on horseback

The two August Lords of high antiquity grasped the handles of the Way and so were established in the center. Their spirits mysteriously roamed together with all transformations and thereby pacified the four directions. Huainanzi

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. The use of these "two handles" (punishment and reward) nonetheless forms a primary premise of Han Fei's administrative theory. However, he includes it 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.

Enlightened absolutism

Even if the Fajia were not ardent absolutists (and Han Fei believed that most rulers would be average), they would never dream of openly challenging absolutism, and its methods are presented as empowering the ruler. Han Fei's doctrine, however, challenges its absolutist premise out of its own mouth. In order for its administration to function, the ruler must act as a cog in its operation, and that alone. The operation of Fa implies non-interference not only in its application, but also in its development, determined through method.

Xuezhi Guo's Ideal Chinese Political Leader contrasts the Confucian "Humane ruler" with the Legalists as "intending to create a truly 'enlightened ruler'". He quotes Benjamin I. Schwartz as describing the features of a truly Legalist "enlightened ruler":

He must be anything but an arbitrary despot if one means by a despot a tyrant who follows all his impulses, whims and passions. Once the systems which maintain the entire structure are in place, he must not interfere with their operation. He may use the entire system as a means to the achievement of his national and international ambitions, but to do so he must not disrupt its impersonal workings. He must at all times be able to maintain an iron wall between his private life and public role. Concubines, friends, flatterers and charismatic saints must have no influence whatsoever on the course of policy, and he must never relax his suspicions of the motives of those who surround him.

As easily as mediocre carpenters can draw circles by employing a compass, anyone can employ the system Han Fei envisions. The enlightened ruler restricts his desires and refrains from displays of personal ability or input in policy. Capability is not dismissed, but the ability to use talent will allow the ruler greater power if he can utilize others with the given expertise. Laws and regulations allow him to utilize his power to the utmost. Adhering unwaveringly to legal and institutional arrangements, the average monarch is numinous. A.C. Graham writes:

[Han Fei's] ruler, empty of thoughts, desires, partialities of his own, concerned with nothing in the situation but the 'facts', selects his ministers by objectively comparing their abilities with the demands of the offices. Inactive, doing nothing, he awaits their proposals, compares the project with the results, and rewards or punishes. His own knowledge, ability, moral worth, warrior spirit, such as they may be, are wholly irrelevant; he simply performs his function in the impersonal mechanism of the state.

Resting empty, the ruler simply checks "shapes" against "names" and dispenses rewards and punishments accordingly, concretizing the Tao ("path") of Laozi into standards for right and wrong. Submerged by the system he supposedly runs, the alleged despot disappears from the scene.

Later history

Fall

A modern marble statue of the first Emperor of China, Qin Shi Huang

Guided by thought belonging to what would be called the Fajia, the First Qin Emperor Qin Shi Huang conquered and unified the China's warring states into thirty-six administrative provinces, under what is commonly thought of as the first Chinese empire, the Qin dynasty. The Qin document "On the Way of Being an Official" proclaims the ideal official as a responsive conduit, transmitting the facts of his locale to the court, and its orders, without interposing his own will or ideas. It charges the official to obey his superiors, limit his desires, and to build roads to smooth the transmitting of directives from the center without modification. It praises loyalty, absence of bias, deference, and the appraisal of facts.

The intrastate realpolitik would end up devouring the philosophers themselves. Holding that if punishments were heavy and Fa equally applied, neither the powerful nor the weak would be able to escape consequences, Shang Yang advocated the state's right to punish even the ruler's tutor, and ran afoul of the future King Huiwen of Qin (c. 338–311 BCE). Whereas at one point, Shang Yang had the power to exile his opponents (and, thus, eviscerate individual criticism) to border regions of the state, he was captured by a statue he had introduced and died being torn into pieces by chariots. Similarly, Han Fei would end up being poisoned by his envious former classmate Li Si, who in turn would be killed under a statute he had introduced by the aggressive and violent Second Qin Emperor that he had helped to take the throne.

As recorded in the Records of the Grand Historian and the Book of Han, the Han dynasty took over the governmental institutions of the Qin dynasty almost unchanged, but in its early decades it was not a centralized state, parcelling out the country to a number of relatives, who as vassal kings who ruled with full authority. The reputation of the Fajia suffered from association with the former Qin dynasty. Sima Tan, though hailing the Fa "school" for "honouring rulers and derogating subjects, and clearly distinguishing offices so that no one can overstep [his responsibilities]", criticized the Legalist approach as "a one-time policy that could not be constantly applied". Though different philosophically, the pairing of figures like Shen Buhai and Shang Yang along with Han Fei became common in the early Han dynasty, Sima Tan glossing the three as Fa Jia and his son as adherents of "xing ming" ("performance and title").

The syncretic Han Dynasty text, the Huainanzi records that

On behalf of the Ch'in, Lord Shang instituted the mutual guarantee laws, and the hundred surnames were resentful. On behalf of Ch'u, Wu Ch'i issued an order to reduce the nobility and their emoluments, and the meritorious ministers revolted. Lord Shang, in establishing laws, and Wu Ch'i, in employing the army, were the best in the world. But Lord Shang's laws [eventually] caused the loss of Ch'in for he was perspicacious about the traces of the brush and knife, but did not know the foundation of order and disorder. Wu Ch'i, on account of the military, weakened Ch'u. He was well practiced in such military affairs as deploying formations, but did not know the balance of authority involved in court warfare.

Imperial China

Han dynasty

Despite the fall of the Qin dynasty, the administration and political theory developed during the formative Warring States period would still influence every dynasty thereafter, as well as the Confucian philosophy that underlay Chinese political and juridical institutions. The influence of the Fajia on Han Confucianism is very apparent, adopting Han Fei's emphasis of a supreme ruler and authoritarian system rather than Mencius's devaluation thereof, or Xun Kuang's emphasis on the Tao.

Shen Buhai's book appears to have been widely studied at the beginning of the Han era, and is listed along with the Book of Lord Shang in the Book of Han. As protégé of a Han Dynasty Commandant of Justice that had studied under Li Si, Jia Yi was a student of Shen Buhai through them. His writings blame the fall of the Qin dynasty simply on the education of the second emperor, and he would draw up elaborate plans for reorganizing the bureaucracy, which Emperor Wen of Han put into effect.

Shen Buhai never attempts to articulate natural or ethical foundations for his Fa (administrative method), nor does he provide any metaphysical grounds for his method of appointment (later termed "xing-ming"), but later texts do. The Huang-Lao work Boshu grounds fa and xing-ming in the Taoist Dao.

The Discourses on Salt and Iron's Lord Grand Secretary uses Shang Yang in his argument against the dispersion of the people, stating that "a Sage cannot order things as he wishes in an age of anarchy". He recalls Lord Shang's chancellery as firm in establishing laws and creating orderly government and education, resulting in profit and victory in every battle. Although Confucianism was promoted by the new emperors, the government continued to be run by Legalists. Emperor Wu of Han (140–87 BCE) barred Legalist scholars from official positions and established a university for the study of the Confucian classics, but his policies and his most trusted advisers were Legalist. Michael Loewe called the reign of Emperor Wu the "high point" of Modernist (classically justified Legalist) policies, looking back to "adapt ideas from the pre-Han period". An official ideology cloaking Legalist practice with Confucian rhetoric would endure throughout the imperial period, a tradition commonly described as wàirú nèifǎ (Chinese: 外儒內法; lit. 'exteriorly Confucian, interiorly Legalist').

It became commonplace to adapt the theories associated with the Fajia by justifying them using the classics, or combining them with the notion of the "way" or "pattern of the cosmos" ("The Way gave birth to law" Huangdi Sijing). Some scholars "mourn" the lack of pure examples of Taoism, Confucianism and Legalism in the Han dynasty more generally. Han sources would nonetheless come to "treat Legalism as an alternative to the methods of the Classicists". During the decay of the Han Dynasty, many scholars again took up an interest in Legalism, Taoism and even Mohism, and a number of Confucians took up "Legalist" methods to combat the growing disregard for law.

Xing-Ming influences

The Records of the Grand Historian records Li Si as repeatedly recommending "supervising and holding responsible", which he attributed to Shen Buhai. A stele set up by Qin Shi Huang memorializes him as a sage that, taking charge of the government, established Xing-Ming.

In the early Han dynasty, Sima Tan's Taoist syncretism almost unmistakably uses the same sort of technique as Shen Buhai, saying:

When the congregation of ministers has assembled, the ruler lets each do as he will (zi ming). If result coincides with claim, this is known as 'upright'; if it does not, this is known as 'hollow'.

The Huang–Lao text Jing fa says

The right way to understand all these (things) is to remain in a state of [vacuity,] formlessness and non-being. Only if one remains in such a state, may he thereby know that (all things) necessarily possess their forms and names as soon as they come into existence, even though they are as small as autumn down. As soon as forms and names are established, the distinction between black and white becomes manifest ... there will be no way to escape from them without a trace or to hide them from regulation ... [all things] will correct themselves.

The Records of the Grand Historian states that Emperor Wen of Han was "basically fond of Xing-Ming". Jia Yi advised Wen to teach his heir to use Shen Buhai's method, so as to be able to "supervise the functions of the many officials and understand the usages of government". Pressure groups saw Jia Yi's dismissal, but was brought back to criticize the government. Two advisors to Wen's heir, Emperor Jing of Han were students of Xing-Ming, one passing the highest grade of examination, and admonished Jing for not using it on the feudal lords.

By the time of the civil service examination was put into place, Confucian influence saw outright discussion of Shen Buhai banned. Xing-Ming is not discussed by Imperial University's promoter, the famous Confucian Dong Zhongshu. However, the Emperor under which it was founded, Emperor Wu of Han, was both familiar with and favorable to Legalist ideas, and the civil service examination did not come into existence until its support by Gongsun Hong, who did write a book on Xing-Ming. 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.

Regarded as being in opposition to Confucians, as early as the Eastern Han its full and original meaning would be forgotten. Yet the writings of Dong Zhongshu discuss personnel testing and control in a manner sometimes hardly distinguishable from the Han Feizi. Like Shen Buhai, he dissuades against reliance upon punishments. As Confucianism ascended the term disappeared, but appears again in later dynasties.

The Yongzheng Emperor of the Qing dynasty was also said to "xunming zishe", or "demand performance in accordance with title", a near-verbatim usage of the Han Feizi.

Post-Han

The Records of the Three Kingdoms describes Cao Cao as a hero who "devised and implemented strategies, lorded the world over, wielded skillfully the law and political technique of Shen Buhai and Shang Yang, and unified the ingenious strategies of Han Fei". Zhuge Liang also attached great importance to the works of Shen Buhai and Han Fei. The tendency toward Legalism is apparent in intellectual circles toward the end of the Han dynasty, and would be reinforced by Cao Wei. Dispossessed peasants were organized into paramilitary agricultural colonies to increase food production for the army, and penal legislation increased. These policies would be followed by the Northern Wei.

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". But Wen might be said to have already been steeped in a Legalist tradition followed by the aristocratic institutions of the northern dynasties, who concerned themselves with functional organization and social hierarchy. The Sui dynasty and Tang dynasty were largely based upon the Western Wei and Northern Zhou, refining pre-existing institutions and taking measures against the aristocracy.

Quoting Arthur Wright, Author Hengy Chye Kiang calls the Sui dynasty a "strong autocratic power with a penchant for Legalist philosophy", and its prime minister Gao Jiong "a man of practical statecraft" recalling the great Legalist statesmen. His influence saw the replacement of Confucians with officials of "Legalist" outlook favoring centralization.

Under Legalist influence, Li Gou and Wang Anshi emphasised seeking profit for the people. Deng Guangming argued that Wang Anshi was influenced by Warring States-era Legalism, with his emphasis on "enriching the state and strengthening the army" and Legalist ideas of law. His baojia system which survived until the end of Imperial China has been described as a Legalist device.

Ming dynasty

Li Shanchang (1314–1390), a founding Prime Minister of the Ming dynasty, studied Chinese Legalism. It is said that Li was the Emperor Hongwu's closest comrade during the war, and greatest contributor to his ultimate victory and thus establishment of the Ming Dynasty. Deeply trusted by the Emperor, Hongwu consulted Li on institutional matters. Li planned the organization of the "six ministries" and shared in the drafting of a new law code. He established salt and tea monopolies based on Yuan institutions, eliminated corruption, restored minted currency, opened iron foundries, and instituted fish taxes. It is said that revenues were sufficient, yet the people were not oppressed. Most of his other activities seem to have supported Hongwu Emperor's firm control of his regime. Mainly responsible for ferreting out disloyalty and factionalism among military officers, he used a reward and punishment system reminiscent of the Han Feizi, and may have had a kind of secret police in his service. At times he had charge of all civil and military officials in Nanking.

In 1572 Zhang Juzheng, a legalistic, prime-minister like figure of the Ming Dynasty, had the young emperor of the time issue a warning edict against China's bureaucracy with the reference that they had abandoned the public interest for their own private interests. It reads: "From now on, you will be pure in your hearts and scrupulous in your work. You will not harbor private designs and deceive your sovereign ... You will not complicate debates and disconcert the government." It suggests that good government will prevail as long as top ministers were resolute in administration of the empire and minor officials were selflessly devoted to the public good. It is said that the officials became "very guarded and circumspect" following its release. His "On Equalizing Taxes and Succoring the People" postulated that the partiality of local officials toward powerful local interests was responsible for abuses in tax collection, hurting both the common people and the Ming state.

Zhang Juzheng wrote that "it is not difficult to erect laws, but it is difficult to see they are enforced". His Regulation for Evaluating Achievements (kao cheng fa) assigned time limits for following government directives and made officials responsible for any lapses, enabling Zhang to monitor bureaucratic efficiency and direct a more centralized administration. That the rules were not ignored is a testament to his basic success.

Modern influence

Qing decline and reform in the 19th-20th centuries

In the midst of the decline of the Qing dynasty in the late-19th century, Confucianism turned towards practicality (the School of Practical Statecraft, substantial learning). For some reformist scholars the focus on Confucianism was eroded in favour of Legalist principles of bian-fa (state reform), fu-qiang (state wealth and power) and even shang-zhan (economic warfare). Albert Feuerwerker argues that this Legalist raison d'etat ultimately was connected to the reform proposals of the 1890s, such as the Hundred Days Reform, and thence the New Policies of the early twentieth century. Western science was integrated into the Confucian worldview as an interpretation and application of Confucian principles. Shang Yang's slogan of "rich country, strong army" was also reinvoked in nineteenth century Japan as a "formal ideological foundation of industrial and technological development".

Legalism was partly rehabilitated in the twentieth century by new generations of intellectuals. One, Mai Menghua (1874–1915), promulgated interest in Shang Yang's thought, comparing Shang Yang's view of history with the evolutionary ideas of Western theorists. The New Culture Movement leader, Hu Shi (1891–1962), hailed Han Fei and Li Si for their "brave spirit of opposing those who 'do not make the present into their teacher but learn from the past'".

Republican era

Kuomintang leader Hu Hanmin (1879–1936) wrote the preface to a new edition of the Book of Lord Shang. Because the Fajia ignored differences among subjects, early twentieth century Chinese scholarship often viewed it within the context of Western "rule of law". One 1922 article, "The Antiquity of Chinese Law", attributes three legal theories to Han Fei, and referred to him as a "jurist". From the 1920s on it was viewed as being in a historical struggle with the Confucian "rule of men".

Liang Qichao's rule of man vs rule of fa

As a component of debate in early Republican China, Liang Qichao (1873–1929) differentiated "Fa thinkers" (Yuri Pines) and their Confucian rivals by the rule of fa (fazhi 法治) over the “rule of men” (renzhi 人治). The tension between the two may be seen, through this lense, as recurring since the Warring States period, particularly during times of crisis. Professor Professor Leigh K. Jenco (2010) charactizes the two as "virtuous, far-seeing individuals" versus the "well-designed, impartial institutions" first broached by the Warring States philosophers. After Mao Zedong, the concept plays a role in the late 1970s legal discussion following the Gang of Four, in which legal thinkers again used the term Fazhi in seeking a socialist rule by law.

Skeptical of Chinese people's readiness and capability for self-rule, together with his colleagues Du Yaquan and Wu Guanyin, Liang argued for moral reform from the rule of man position, against rule of law. The early incorporation of these discussions may be seen as an early modern evidence for their precedent in China prior to significant western influence, and against the idea that, unlike India, China lacked tradition to fall back on in modern reform.

Phrasings contrasting the rule of men and rule by law can occasionally be seen on the subject of Chinese Legalism. However, although relevant as a note on the early modern history of the subject, and a specifically Chinese lense of interpretation denoting issues that continue today, the subject event was largely ignored in historical literature. Moreover, despite the westernization of the name and their antithesis along lines of rule, if not other lines, the Fajia's legal (rather than administrative) component largely consisted of reward and punishment. Secondly, despite the theoretical antithesis often present between the two, the "Legalist" current still promoted values more similar to those within Confucianism than any modern liberal-democratic, 'impartial' rule of law, even if aiming at impartiality in theory.

Maoist era

Further information: Criticize Lin, Criticize Confucius

The early Mao Zedong has been described as a "dyed-in-the-wool" Legalist or "Lord Shang-style 'sage ruler', who defined the law according to revolutionary needs". Communist intellectuals used the Fajia in their criticism of Confucianism, describing the conflict between the two as class struggle. In 1950, the PRC combined law with campaigns against political enemies, and appeals to the Fajia for solutions became common after the Great Leap Forward. Fazhi, another historical term for "Legalism", would be used to refer to both socialist legality and Western rule of law. Still contrasted with renzhi (or rule of persons), most Chinese wanted to see it implemented in China.

Dengist era, contrasting East and West

In "Globalization and State Transformation in China" (2004), a work included in Cambridge's Asia-Pacific studies, Yongnian Zheng invokes Chinese Legalism as a modern basis in a contrasting of Chinese rule by law with the Western rule of law, although with a "bureaucratic ethos" of Soviet influence from the 1970s.

Zheng references Richard Baum, differentiating China's rule by law as an instrument of state power, enabling the state to "rely on the gentry, family heads, and village elders to enforce local customs". This power was "transferred to the courts" in the more pluralistic West, and is contrasted as being intended to act as a delicately balanced "shield" against arbitrary state power. Sinologist Edward Epstein viewed law in China as still operating in the former vein, using rule by law to "uphold the socialist political order and perpetuate party domination."

However, although lacking rule of law proper, rule of law became a major subject and in the 3rd Plenary Session of the 11th Central Committee of the Chinese Communist Party in 1978, and subsequent major sociopolitical aim. The congress proposed the sixteen-word formula, "you fa ke yi, you fa bi yi, zha fa bi yan, we bi jiu", or "there must be laws (fa) for people to follow, these laws (fa) must be observed, their enforcement must be strict, and law-breakers must be dealt with." The development of the legal system, and the development of democracy, were considered almost interchangeable, with law systematizing and defending democracy. On this, Zheng quotes Deng Xiaoping: "Democracy has to be institutionalized and written into law so as to make sure that institutions and laws do not change whenever the leadership changes or whenever the leaders change their views."

Zheng considers the Chinese leadership of the 1980s and early 1990s to have "given the highest priority" to "building a legal system", and "vigorously pursuing" a "legal state" as a "new and effective way of governance". With efforts to establish rule of law after the mid-1990s, being set up as a goal in the 15th National Congress of the Chinese Communist Party, the growth of law might be said to outpace that of the Chinese economy.

Modern era

Two decades of reform, the Soviet Union's collapse and a financial crisis in the 1990s only served to increase the relevance of the rule of law, and the 1999 constitution was amended to "provide for the establishment of a socialist rule-of-law state", aimed at increasing professionalism in the justice system. Signs and flyers urged citizens to uphold the rule of law. In the following years, figures like Pan Wei, a prominent Beijing political scientist, would advocate for a consultative rule of law with a redefined role for the party and limited freedoms for speech, press, assembly and association.

Xingzhong Yu, Professor at Cornell University, describes the PRC through a framework of "State Legalism", and "Legalist" discourse is seeing a resurgence during the leadership of Xi Jinping, who is the General Secretary of the Chinese Communist Party, with journalists reporting on his fondness for the Chinese classics, alongside Confucianism, including Legalist writers and in particular Han Fei, both of which Xi sees as relevant. Han Fei gained new prominence with favourable citations. One sentence of Han Fei's that Xi quoted appeared thousands of times in official Chinese media at the local, provincial, and national levels. A key phrase of Xi's reforms is "govern the state according to law" (simplified Chinese: 依法治国; traditional Chinese: 依法治國; pinyin: yī fǎ zhì guó), although focusing on enforcing discipline on party and government officials first.

Confucian argument

Chad Hansen explains Confucius' famous argument in the Analects as largely directed against punishment. Punishment rather than education fails to develop social conformity through shame, which while gradual might be stabler and more effective in the long term. Official coercion strengthens self-interest. "Confucius repeatedly disparages the rise of litigiousness, glibness, and cleverness" among people "governed by promulgated, public codes... formalized code can subjected to interpretive disputes", with "selfishness and glibness" threatening the natural social order. Confucians opposed the general accessibility of Fa as inviting mass "quibbling", with the notion that disputation should be restricted to the Confucian scholars as a task requiring Li (ritual) and Ren (humanity) and the development of intuition.

Sources and further reading

• Pines, Yuri (2018), "Legalism in Chinese Philosophy", in Zalta, Edward N. (ed.), The Stanford Encyclopedia of Philosophy (Winter 2018 ed.), Metaphysics Research Lab, Stanford University, retrieved 2022-01-28
• Hansen, Chad. A Daoist Theory of Chinese Thought: A Philosophical Interpretation (2000)
• Hansen, Chad. Philosophy East & West. Jul94, Vol. 44 Issue 3. Fa (standards: laws) and meaning changes in Chinese philosophy
• 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 G. (1953), Chinese Thought from Confucius to Mao Tsê-tung, University of Chicago Press, ISBN 978-0-226-12030-0.
• Creel, Herrlee Glessner, 1974 Shen Pu-Hai: A Secular Philosopher of Administration, Journal of Chinese Philosophy Volume 1.
• Garfield, Jay L.; Edelglass, William. The Oxford Handbook of World Philosophy. 2011
• Bodde, Derk (1986). "The State and Empire of Ch'in". In Twitchett, Denis; Loewe, Michael (eds.). The Cambridge History of China Volume I: Ch'in and Han Empires, 221 B.C. -- A.D. 220. Cambridge University Press. ISBN 9780521243278.
• Barbieri-Low, Anthony, trans. The Standard Measure of Shang Yang (344 B.C.) (2006)
• Duyvendak, J.J.L., trans. The Book of Lord Shang: A Classic of the Chinese School of Law. London: Probsthain, 1928.
• Eno, Robert (2010), Legalism and Huang-Lao Thought (PDF), Indiana University, Early Chinese Thought Course Readings
• Goldin, Paul R. (2011), "Persistent misconceptions about Chinese 'Legalism'" (PDF), Journal of Chinese Philosophy, 38 (1): 88–104, doi:10.1111/j.1540-6253.2010.01629.x See also
  • Goldin, Paul R. (2011), "Response to editor", Journal of Chinese Philosophy, 38 (2): 328–329, doi:10.1111/j.1540-6253.2011.01654.x.
  • Cheng, Chung-ying (2011), "Editor's discussion", Journal of Chinese Philosophy, 38 (2): 330, doi:10.1111/j.1540-6253.2011.01655.x.
• Graham, A.C., Disputers of the TAO: Philosophical Argument in Ancient China (Open Court 1993). ISBN 0-8126-9087-7
• Harris, Eirik Lang, Legalism (Oxford Bibliographies Online) (Oxford University Press, 2018).
• Lai, Karyn L. (2008), An Introduction to Chinese Philosophy, Cambridge University Press, ISBN 978-1-139-47171-8.
• Qian, Sima. Records of the Grand Historian, Qin Dynasty. Translated by Burton Watson. New York: Columbia University Press, 1993.
• Schwartz, Benjamin I. (1985), The World of Thought in Ancient China, Cambridge, MA: Harvard University Press, ISBN 978-0-674-96191-3.
• Waley, Arthur (1939). Three Ways of Thought in Ancient China. London: G. Allen & Unwin. Various reprints.
• Watson, Burton, trans. Han Fei Tzu: Basic Writings. New York: Columbia University Press, 1964.
• Xinzhong, Yao, Introduction to Confucianism (2000). ISBN 978-0-521-64312-2
• Potter, Pittman, From Leninist Discipline to Socialist Legalism : Peng Zhen on Law and Political Authority in the PRC2 (2003). ISBN 978-0-8047-4500-0

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