Legalism (Chinese philosophy)

Chinese school of philosophy

Legalism

Statue of the legalist Shang Yang

Chinese| 法家
Literal meaning| School of law
| Transcriptions

Standard Mandarin
Hanyu Pinyin| Fǎjiā
Bopomofo| ㄈㄚˇ ㄐㄧㄚ
Wade–Giles| Fa3-chia1
Tongyong Pinyin| Fǎ-jia
IPA| [fà.tɕjá]
Yue: Cantonese
Yale Romanization| Faatgā
Jyutping| faat3 gaa1
IPA| [fat̚˧ ka˥]
Part of a series on

Chinese legalism

Figures

* Guan Zhong
* Marquess Wen of Wei
* Li Kui
* Duke Xiao of Qin
* Shang Yang
* Shen Buhai
* Wu Qi
* Shen Dao
* Zhang Yi
* Han Fei
* Li Si
* Qin Shi Huang

Han figures

* Jia Yi
* Emperor Wen of Han
* Emperor Wu of Han
* Chao Cuo
* Gongsun Hong
* Zhang Tang
* Huan Tan
* Wang Fu
* Zhuge Liang

Later figures

* Emperor Wen of Sui
* Du You
* Wang Anshi
* Li Shanchang
* Zhang Juzheng
* Xu Guangqi

Relevant texts

* Guanzi
* The Book of Lord Shang
* Shenzi (both books)
* Han Feizi
* Wuzi
* Wei Liaozi
* Annals of Lü Buwei
* Huang-Lao

Relevant articles

* Rectification of names
* Wu wei
* Discourses on Salt and Iron
* Criticize Lin, Criticize Confucius

* v
* t
* e

Fajia (Chinese: 法家; pinyin: fǎjiā), or the fa school, often translated as Legalism,[1] is a school of mainly Warring States period classical Chinese philosophy, whose ideas contributed greatly to the formation of the bureaucratic Chinese empire, and Daoism as prominent in the early Han. The later Han takes Guan Zhong as a forefather of the Fajia. Its more Legalistic figures include ministers Li Kui and Shang Yang, and more Daoistic figures Shen Buhai and philosopher Shen Dao, with the late Han Fei drawing on both. It is often characterized in the west along realist lines. With Shang Yang, Shen Buhai and Han Fei taken as a source for Qin dynasty practices by the Han,[2] the Qin to Tang were more characterized by its tradition.

Though the origins of the Chinese administrative system cannot be traced to any one person, grand chancellor Shen Buhai may have had more influence than any other for the construction of the merit system, and could be considered its founder. His philosophical successor Han Fei, regarded as their finest writer, wrote the most acclaimed of their texts, the Han Feizi, containing some of the earliest commentaries on the Daodejing. Sun Tzu's Art of War recommends Han Fei's concepts of power, technique, inaction, impartiality, punishment and reward.

Concerned largely with administrative and sociopolitical innovation, Shang Yang's reforms transformed the peripheral Qin state into a militarily powerful and strongly centralized kingdom, mobilizing the Qin to ultimate conquest of the other states of China in 221 BCE. With an administrative influence for the Qin dynasty, he had a formative influence for Chinese law. Succeeding emperors and reformers often followed the templates set by Han Fei, Shen Buhai and Shang Yang.

## Han categories

[edit]

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

Although propelling the Qin to power, central China likely did not know the remote Qin state's Shang Yang until at least the eve of imperial unification, with Han Fei his first reference outside the Qin state's own Book of Lord Shang. Knowing of Shen Buhai and Shen Dao, even the late Xun Kuang would not seem to know Shang Yang, despite traditional comparisons.[3] With a major contribution to China's administration,[4] the Han Feizi's several prominent figures are under Sima Tan's (165–110 BCE) fa school (laws,methods)[5] because Liu Xiang (77–6BCE) and Liu Xin (c.46bce–23ce) placed them there in the Han imperial library along with six other texts. It would become a major category of Masters Texts in book catalogues, namely the Han dynasty's own Book of Han (Hanshu, 111ce).[6] According to the Hanshu, Liu Xiang still considered Shen Buhai's doctrine to be that Xing-Ming.[7]

Although Han Fei includes law, Sima Qian (145–86 BC) glosses Shang Yang, Shen Buhai and Han Fei under the doctrine of Xing-Ming, whose practice he asserts the First Emperor as proclaiming. Probably originating in the Neo-Mohists and Xingmingjia school of names, whose earlier terms Shen Buhai uses, Xing-Ming examines and correlates claims and realities, in Shen Buhai/Han Fei doctrine as job proposals. The Han Feizi's version can be seen in it's chapter 5, incorporating Laozi and Shen Buhai, as an assembly of ministers contracted by a preferably semi-inactive ruler, refraining from interference with duties. As the first two advocates of it's particular form of government, Sima Tan's own discussion of the Daoist school is 'unmistakably' based partly on the Xing-Ming court.[8][9] Sima Qian blames Li Si as purportedly implementing the combination of Shang Yang and Shen Buhai under the Qin dynasty's Second Emperor, citing the Han Feizi.[10] It's doctrine can be seen in Han Fei's chapter 43, as it's earliest example.[11]

Potentially influential for the founding of the imperial examination,[12] no Han or earlier text individually connects Shen Buhai with penal law, but only with control of bureaucracy. His administrative ideas would be relevant for penal records and practice by the Han dynasty, with secretaries who had charge of records in penal decisions termed Xing-Ming. The Huainanzi, Sima Qian and Liu Xiang attribute it back to his doctrine, described as holding outcomes accountable to claims.[13] With their doctrines scarcely visible in the early Han, according to the Shiji, the practice of Xing-Ming emerged again under Emperor Wen of Han and his trusted ministers, though Creel evaluates it there as "cautious, unobtrusive and firm", more akin to Shen Buhai than Han Fei.[14]

While concepts like fa were earlier developed by the Mohists, Shen Buhai, Shen Dao, and Han Fei were otherwise associated with early Daoism. The eclectic Han Feizi itself a Daoist-influenced text, with differences to later Daoism, although some of these may be later additions.[15][16] Likely a well known philosopher in his time from the Jixia Academy,[17] the Mohists and Shen Dao are claimed by the Outer Zhuangzi as predecessor to Zhuang Zhou and Laozi,[18] and Shen Dao bares resemblance to the Zhuangzi.[19] Sima Qian places the biographies of Han Fei and Shen Buhai alongside Laozi and Zhuangzi.[20] Along with founding Han figures, he claims Han Fei, Shen Buhai and Shen Dao as having studied his same Huang-Lao ideology, or "Yellow Emperor and Laozi Daoism",[21] stating that "Shen Buhai's doctrines were based on the Yellow Emperor and Laozi and he advocated Xing-Ming."[22]

### Earliest connection

[edit]

In its own time, Li Kui's native Wei was a marginalized state of little interest to Warring States contemporaries. Edward L. Shaughnessy speculatively compares Shen Buhai with Li Kui, but only at the broad level that they mutually sought more meritocratic government.[23] In that sense, Shen Buhai can just as well be compared with the older, more Confucian Zichan, and Creel did so, stating that evidence of direct influence is lacking.[24] In the advanced stages of the Book of Lord Shang's development, Chapter 24 demonstrates familiarity with concepts otherwise associated with Shen Buhai and Shen Dao, but also cannot demonstrate direct influence by usage of their by then more prominent terms.[25]

While the Warring States period contains figures that can partly be called Legalistic,[26] as Shang Yang's first reference, it is only possible to trace the origins of their later association within the fa-school to the first direct connection between him and Shen Buhai, in chapter 43 of the Han Feizi. Set against a backdrop of the late Warring States period's Hann state under the threat of Qin, Han Fei considered fa (standards) as including law necessary, taking Shang Yang as representative, as well as the use of standards (fa) in the administration, representative of his own state's Shen Buhai. The latter he terms (shu) administrative Method or Technique, concerned with holding power, selecting ministers, and overseeing performance. Based on the Shiji, Sima Tan himself was aware of their distinction. Along these lines, Creel asserted Shang Yang the Fajia's Legalist branch, and Shen Buhai it's administrative, with argument in early modern scholarship.[11]

According to Han Fei, Shen Buhai had disorganized law in the then newly formed Hann state,[27] and appears to have opposed penal punishment.[28] He can still be seen in a fifth century text, purporting to quote Liu Xiang, as a figure who advocated administrative technique, supervision, and accountability to abolish the punishment of ministers. Creel's history contrasted him with the more penal Shang Yang, as Han Fei's chapter 43 does, taking them to be two different schools well into the Han dynasty, although some did use them together.[29] Along with old descriptors of Realism and that of social engineers, Sinologist Fraser's section in the Oxford Handbook prominently characterized them as disparate statesmen, in their own times living in states, and probably never an organized school or movement in the sense of the Mohists or Confucians.[30] More modern Chinese themselves would often appear to divide them; Feng Youlan that three different groups preceded Han Fei, Mou Zongsan with Shen Buhai and Han Fei as "Later Legalists."[31]

Although still sometimes used, Legalism and Fajia are anachronistic in modern scholarship; as far as can be seen, categories like the Fajia or Fa-school were coined by Sima Tan to promote what he coined the Dao-School, coming to mean Daoism. Fajia is adopted by the Imperial Han Confucian archivists for their own historical revisionism, connecting the schools with ancient Zhou dynasty departments, after Shen Buhai had become relevant for law. Early thinkers or non-Confucians do not necessarily interpret them as Fajia or Legalists; Sima Qian frames Shen Buhai/Han Fei as Xing-Ming adherents that studied Huang-Lao. Cited by Yuri Pines fa tradition in the Stanford Encyclopedia of Philosophy for abandonment of the terms, Sinologist Goldin discusses figures like Han Fei individually.[32] Professor Tao Jiang's dissertation modernly attempts to argue the legitimacy and usefulness of anachronistically applying Fajia as an interpretive category.[33]

## Changing with the times

[edit]

Taken as a commonality, what the Stanford Encyclopedia of Philosophy terms an evolutionary view of history has generally been associated more particularly with Gongsun Yang and Han Fei. However, sinologist Hansen also once took the Dao of Shen Dao and Han Fei as attempting to aim at what they took to be the '"actual" course of history'. Feng Youlan took the statesmen as fully understanding that needs change with the times and material circumstances. Admitting that people may have been more virtuous anciently, Han Fei believes that new problems require new solutions, with history as a process contrasting with the beliefs of Ancient China.[34]

Considering Shang Yang to have inherited from Li Kui and Wu Qi, professor Ch'ien Mu still believed that Shang Yang had his origins in Confucianism, saying "People say merely that Legalist origins are in Dao and De (power/virtue) [i.e., Daoist principles], apparently not aware that their origins in fact are in Confucianism. Their observance of law and sense of public justice are wholly in the spirit of Confucius' rectification of names and return to propriety, but transformed in accordance with the conditions of the age." In the ancient society, punishment by law would typically only apply to the people, while the nobles are only punished by ritual. But needs change with the times.[35]

In what A.C. Graham took to be a "highly literary fiction", the Book of Lord Shang opens with a debate held by Duke Xiao of Qin, seeking to "consider the changes in the affairs of the age, inquire into the basis for correcting standards, and seek the Way to employ the people." Gongsun attempts to persuade the Duke to change with the times, with the Shangjunshu citing him as saying: "Orderly generations did not [follow] a single way; to benefit the state, one need not imitate antiquity."

Graham compares Han Fei in particular with the Malthusians, as "unique in seeking a historical cause of changing conditions", namely population growth, acknowledging that an underpopulated society only need moral ties. The Guanzi text sees punishment as unnecessary in ancient times with an abundance of resources, making it a question of poverty rather than human nature. Human nature is a Confucian issue. Graham otherwise considers the customs current of the time as having no significance to the statesmen, even if they may be willing to conform the government to them.[36]

Hu Shih took Xun Kuang, Han Fei and Li Si as "champions of the idea of progress through conscious human effort", with Li Si abolishing the feudal system, unifying the empire, law, language, thought and belief, presenting a memorial to the throne in which he condemns all those who "refused to study the present and believed only in the ancients on whose authority they dared to criticize". With a quotation from Xun Kuang:[37]

> You glorify Nature and meditate on her: Why not domesticate and regulate her? You follow Nature and sing her praise: Why not control her course and use it? ... Therefore, I say: To neglect man's effort and speculate about Nature, is to misunderstand the facts of the universe.

In contrast to Xun Kuang as the classically purported teacher of Han Fei and Li Si, Han Fei does not believe that a tendency to disorder demonstrates that people are evil or unruly.[38]

As a counterpoint, Han Fei and Shen Dao do still employ argumentative reference to 'sage kings'; Han Fei claims the distinction between the ruler's interests and private interests as said to date back to Cangjie, while government by Fa (standards) is said to date back to time immemorial. Han Fei considers the demarcation between public and private a "key element" in the "enlightened governance" of the purported former kings.[39]

### Interstate realism

[edit]

With the Shangjunshu making a predominant usage of fa (standards) as law, and with Han Fei and the Han dynasty largely connecting him with fa with penal law, Creel took Shang Yang as ancient China's Legalist school. But Shang Yang's program was broader than fa or law. Han Fei elementalizes him under fa.[40]

The actual perspective of his current was probably that of trying to create a rich, total state, with a powerful army, all geared for conquest, as expressed in the Book of Lord Shang. Translator Yuri Pines frames him more along these lines. Penal law was one component, including a dominating focus on agriculture that was later abandoned together with his harsh punishments. Shang Yang's institutional reforms can be considered unprecedented, and his economic and political reforms were "unqestionably" more important than his own personal military achievements. But the Han still recognized him as a military strategist, and he was as much a military reformer in his own time, even if he wasn't as renowned a general.[41]

Per Michael Loewe, ministerial recruitment occurred amidst Warring States period mobilization, with the Book of Lord Shang a primary example. Early ministerial recruitment more broadly was focused more simply on census and taxes for mobilization, developing towards such offices as that of diplomats. Penal law aside, Benjamin I. Schwartz took Shang Yang's primary program to be agriculture and war. Acknowledging their bureaucratic contributions, Pine's work in the Stanford Encyclopedia of Philosophy prefaces a Shang Yang-Han Fei primary current along realist lines as seeking rich states with powerful armies.[42]

A figure in the Stratagems of the Warring States, although not the primary focus of his administrative treatise, Shen Buhai also was a military reformer, at least for defense, and is said to have maintained the security of his state.[43] Shen Dao was early remembered for his secondary subject of shi or "situational authority", of which he is spoken in Chapter 40 of the Han Feizi and incorporated into The Art of War, but only uses the term twice in his fragments. Taking his opponents as beclouded in various ways, Xun Kuang calls him "beclouded with fa", prominent in his work as shared with the others, otherwise teaching passivity and the elimination of desire.[44][45][46]

## Xunzi commentary

[edit]

Taking his opponents as "beclouded" by particular aspects of the Way, Xun Kuang criticizes Shen Dao in particular as obsessed with the emulation of models (fa) rather than the employment of worthy men, but not necessarily deciding on one as correct. Shen Dao was more concerned that there be laws than with their particulars. Xun Kuang is of the opinion that his laws (or models) lack 'proper foundations', and will not be successful in ordering the state. But he doesn't oppose him just for advocating fa models or laws. Xun Kuang also discusses fa.[47] He opposes the use of words as litigation and paradoxes, found in the school of names.[48]

## Early Daoistic eclectics

[edit]

Prior Sima Tan and Sima Qian, doctrines were identified only by teachers in connection with textual traditions; for those later termed Daoists, namely the early Laozi and Zhuangzi.[49] Not forming large scale, organized, continuous schools of masters and disciples in the sense of the Mohists and Confucians, those later termed Daoists formed loose networks of master and disciple in the Warring States period, as text-based traditions brought together more fully in the Han dynasty.[50] Early "Daoists" were likely not aware of their whole field, with the writers of the first part of the Zhuangzi not necessarily familiar with the Laozi.[51]

Neither the Fa or Dao schools can be seen to have been coined before Sima Tan.[52] Professor Tao Jiang more simply refers to Han Fei's Laozi influences as Laoist, only theorizing "Zhuangist"-type influences as wariness by the Monarch of manipulation, retreating into wu wei isolation rather than Confucian-style moral education and cultivation. Hermits in the Zhuangzi retreat into isolation to avoid the chaos of the age.[53] But their currents would have had more in common with their contemporaries than their later division would suggest, which did not prior exist. Xun Kuang individually distinguishes Shen Dao for fa, and their figures have been argued to be focused on fa administrative methods and standards. But Han Fei's authors were also focused on Daoistic concepts wu wei and Dao.[54]

Benjamin I. Schwartz describes Shen Dao in terms of equanimity and a spirit of wu wei held in common with Zhuang Zhou and his fellow academicians, the Zhuangzi likely taking them as more detached than some of their still-Daoistic, but more purposeful and "imperfect" predecessors. With Early Daoist ideas found among eclectics like Han Fei and Xun Kuang, his figure is subsumed under both the Han historians fa and dao schools (Daoism).[19] Early taking him as the Beginning of Daoist Theory, or Mature Daoism, Sinologist Hansen of the Stanford Encyclopedia's Daoism still discusses him alongside the Daoists as "Pre-Laozi Daoist Theory", with the Outer Zhuangzi as a theoretical model.[55]

While potentially late additions, the Han Feizi's authors wrote commentaries on the Daodejing. Although Hansen frames Han Fei as using the Laozi as a critique against the Mohists and Confucians, he notes that these earlier commentators provide no comment distinguishing themselves or Han Fei from Laozi, and did not necessarily see two distinct schools, but may have been of the "Huang-Lao" persuasion. A predominant focus on fa "Confucian interpretation", giving them the appearance of historical oddities. It still modernly "seems plausible to read Hanfei within the Daoist dimension", as a "thinker influenced by Daoism." [56]

If Sima Tan had them in mind when he coined Fajia, Sima Qian still discusses Shen Buhai and Han Fei alongside Laozi and Zhuangzi. Claiming them for a Huang-Lao heritage, he promoted his Dao-school as adopting the essentials of Fa (standards) and Ming (names) and realities.[57] Mou Zongsan did not consider Legalism an ideology in Shang Yang's era, with law implemented for utilitarian reasons; Yuri Pines opinion is similar. Taking the secrecy of Shen Buhai and Han Fei's Shu technique as it's later representation, Mou or Huang Kejian modernly take the Dao of a supposed Warring States Daoism as it's basis, or "Daoist statecraft."[58] But a Daoist basis is not an established fact modernly. Creel attempted to distance Shen Buhai from assumed Daoist basis in western scholarship, translating Dao as method in governmental administration.[59]

### Confucian influences

[edit]

Basing himself in administrative impartiality, and showing "both Daoist and Confucian characteristics", Shen Buhai can still modernly be taken as a more Confucian, cooperative figure than might be supposed from the scheming of Han Fei's later chapters, and does not appear to directly attack Confucianism.[60] Although Han Fei would generally be considered authoritarian, neither were figures like Shen Dao necessarily more authoritarian for their time.[61]

Discarding the use of his ears, eyes and wisdom, in contrast to Daoism as later understood, with Dao referring to such things as the totality of reality, Shen Buhai's Dao or Way refers only to impartial administrative methods (fa). As a figure who quotes from the Analects, and makes a more Confucianist usage of Wu wei 'reduced activity' in the sense of leaving duties to ministers, he teaches the ruler not to engage in actions that might harm the 'natural order of things', hiding his power and wit. Argued by Creel as earlier than the Daodejing, he would have to be reconsidered with the discovery of the Mawangdui Silk Texts. Later Han classification as Fajia aside, he was nonetheless said to be a Daoist, or at least "to have studied Huang-Lao". Han Fei's Chapter 5 otherwise quotes from his work alongside that of Laozi.[62]

Advocating that administrative machinery (fa) be used to impartially determine rewards and punishments,[63][64] Shen Dao otherwise advocates that the realm be literally modeled off the natural world.[65] Mencius advocates that Emperor Shun would run away with his father if he had committed murder, rather than see him arrested. Not considering filial piety sufficient for governing the state, Shen Dao advocates the ruler encourage faith in rules by acting according to rules, and not abandon the throne to help murderous family members escape. He still upholds Confucian values like filial piety even if the parents are bad, instead suggesting that parents can be reproached if it might save them from disaster.[66] Although some authors of the Han Feizi took a negative view of Confucianism,[67] it can still be compared with Corncianism, at least nominally. It's system of reward and punishment was focused on forbidding and encouraging ministers, extending to the population. Not just a punishment-focused penal system.[68]

Shen Buhai, Shen Dao and Han Fei bears resemblance to the recovered eclectic, early Boshu text in the Mawangdui Silk Texts, with daoistic ideas comparable more to Natural law.[69] But Creel found no direct political following for Shen Dao comparable to Shang Yang or Shen Buhai by the Han dynasty;[70] the Huainanzi has major influences from the Zhuangzi, and to a lesser extent Han Fei, but opposes Shang Yang and Shen Buhai under a gloss of harsh penal law.[71]

## Han Fei

[edit]

While the term Legalism has still seen some conventional usage in recent years, such as in Adventures in Chinese Realism, apart from its anachronism academia has avoided it for reasons which date back to Sinologist Herrlee G. Creel's 1961 Legalists or Administrators? As Han Fei presents, while Shang Yang most commonly had fa (standards) as law, Shen Buhai uses fa (standards) in the administration, which Creel translated as method. Both Han Fei and the Mohists had conceptions of law, but make broader usages of fa standards.[72][73]

More broadly, together with Shen Buhai and Shen Dao, Han Fei is primarily an administrator, not a legislator. Han Fei and Shen Dao make some use of fa (standards) as akin to law, and some use of reward and punishment, but generally use fa standards similarly to Shen Buhai: as an administrative technique.[63] Shen Buhai uses fa (standards) to compare official's duties and performances, and Han Fei often emphasizes fa in this sense, with a particular quotation from the Han Feizi as example:[74]

> An enlightened ruler employs fa (standards) to pick his men; he does not select them himself. He employs fa to weigh their merit; he does not fathom it himself. Thus ability cannot be obscured nor failure prettified. If those who are [falsely] glorified cannot advance, and likewise those who are maligned cannot be set back, then there will be clear distinctions between lord and subject, and order will be easily [attained]. Thus the ruler can only use fa.

Shang Yang was said to be executed after the death of Duke Xiao of Qin. Although not abandoning his reforms, they would abandon his harsh punishments. The Shangjunshu's current otherwise attempts to innovate broader means of "empowering the state", including standards (fa) of promotion. The Book of Lord Shang represents some of its currents reforms, otherwise containing pre-imperial ideas about what an order based on law and bureaucracy might look like once established.

Purportedly inheriting its current at the end Warring States period, Han Fei aspires to a state with law, wealth and a powerful military. The fact that Han Fei is not a legislator suggests that the Shang Yangian "Legalist" component of his work, aiming at a rule by law, was still more theoretical in his time and place, the purported late Han state.[75] Han Fei's chapter 5, on Xing-Ming administration, does include specific practical recommendations, such that the Wasdea University edition divides it in half.[76]

Blaming Shang Yang for too much reliance on law, Han Fei critiques him in much the same way that the Confucians critique law, holding that laws cannot practice themselves. Han Fei says: "Although the laws were rigorously implemented by the officials, the ruler at the apex lacked methods." [77][78] Han Fei's choice to include law is not accidental, and is at least indirectly intended to benefit the people, insomuch as the state is benefited by way of order. It can (or has, by a law expert rather than Sinologist) be compared to a legislative rule of law inasmuch as it develops beyond purposes serving those of simply the ruler, generally operating separately from him once established. Han Fei says: "The enlightened ruler governs his officials; he does not govern the people." The ruler cannot jointly govern the people in a large state. Nor can his direct subordinates themselves do it. The ruler wields methods to control officials.[79]

The Book of Lord Shang itself addresses statutes mainly from an administrative standpoint, and addresses many administrative questions, including an agricultural mobilization, collective responsibility, and statist meritocracy.[80] Turning towards management, Chapter 25 of the Shangjunshu's so-called "Attention to law" advocates "strict reliance on law" (fa) mainly as "norms of promotion and demotion" to judge officials and thwart ministerial cliques, but not yet apparently having absorbed more complex methods of selection and appointment, still fell back on agriculture and war as the standard for promotion.[81]

### Han Fei and Laozi

[edit]

Sima Qian's Huang-Lao category has still generally taken as imposed backwards in recent times.[82] Sima Qian's claims that a Yellow Emperor Daoism existed however are not without merit as compared with the Mawangdui Silk Texts, and chapter 5 of the Han Feizi.[83] If not earlier, the Mawangdui was likely have been written in the early Han, when they would have been more appealing, and the Yellow Emperor is a major figure in one of its texts. Amongst other strains of thought, its more metaphysical, but still politically oriented Boshu text includes contents baring resemblance to Shen Buhai, Shen Dao and Han Fei, favoring arguments more comparable to natural law.[84]

More political than a typical reading of the Laozi, and less metaphysical than later Daoist texts, Han Fei may be reading from an older, more political version of the Daodejing aimed at his social class. Early taking its existence as demonstrated by the Mawangdui silk texts, Sinologist Hansen adopts the term Huang-Lao as an early, politically partisan variety of Daoism, promoting the idea that a Huang-Lao cult actually had come to dominate Qin intellectual life. As he argues, with the Mawangdui found from a member of the political class, they should not be simply assumed as 'originals', and are not necessarily Daoist in the way it would later be understood.[85]

An interpretation of the Daodejing (Laozi) as simply cynically political would be flawed. Still, together with qigong, it can be viewed as a manual for politics and military strategy. The Laozi of the early Mawangdui Silk Texts, and two of the three earlier Guodian Chu Slips, place political commentaries, or "ruling the state", first. Arguably lacking in metaphysics, their corpus instead possess mythologies. Nonetheless, in contrast to all prior Ways, the Daodejing emphasizes quietude and lack as wu wei. Together especially with their early Laozi, Shen Buhai, Han Fei, and so-called Huang-Lao Daoism emphasize the political usages and advantages of wu wei reduced activity as a method of control for survival, social stability, long life, and rule, refraining from action in-order to take advantage of favorable developments in affairs. [86]

The Han Feizi's late Daodejing commentaries are comparable with the Daoism of the Guanzi Neiye,[87] but otherwise utilizes the Laozi more as a theme for methods of rule. Although he has Daoistic conceptions of objective viewpoints, if his version of the daodejing had them, he lacks a conclusive belief in universal moralities or natural laws,[88] sharing with Shang Yang and Shen Dao a view of man as self-interested.[89] Advocating against manipulation of the mechanisms of government, despite an advocacy of passive mindfulness, noninterference, and quiescence, the ability to prescribe and command is still built into Han Fei's contractual method.[90] His current is opposed with later Daoism as a practical state philosophy, not accepting a 'permanent way of statecraft', and applying the practice of wu wei or non-action more to the ruler than anyone else.[91]

### Daodejing 17

[edit]

With some of Han Fei's own ideas, the Han Feizi's eclectic Way of the Ruler (Chapter 5) parallels Laozi with Shen Buhai, highlighting Shen Buhai's administrative ideas with advice to the ruler to reduce his expressions, desires and traditional wisdom.[92] With hints of naturalism, but leaving out metaphysics, Han Fei often references the Dao in an attempt to demonstrate how the Laozi can make a better ruler, with its particular chapter as example. Sima Qian does not include the chapter in his short list, so that it can be questioned if he read it; but it would seem the most likely chapter he would have read when he placed the figures, sans Shang Yang, as "Huang-Lao", discussing Shen Buhai and Han Fei alongside Laozi and Zhuangzi.[93] Chapter 5's first paragraph says:

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

K.C. Hsiao's early literature contrasts Han Fei and Daoism. One, the ruler of the Daodejing's paragraph 17 was that of a primeval state, not one expected to potentially lead an empire. A Daoist does not generally place heavy emphasis on agriculture, rewards and punishments as with Shang Yang. Han Fei says "when terms are rectified and laws complete, the sage ruler will have no matters to concern him", aiming for an "enlightened ruler presiding above in non-action". But his non-action is secrecy in imposing punishments, and concealing knowledge. Hsiao contrasts this with the ruler's mind forming "a harmonious whole with that of all his people" in the Daodejing.[94]

But Creel takes particular note of section 17 of the Daodejing (Laozi) as interpreted by J. J. L. Duyvendak, "arousing wide interest" but "quite old in Chinese literature" as that of a form of Daoism "leaning heavily toward Legalism". Creel takes the Wenzi as example, including a passage drawing from the Daodejing, Han Feizi and Huainanzi.[95] Section 17's 'enigmatic' passage does not directly mention rulers, but would seem to discuss the ruler as one who "does everything without acting". Duvyendak notes the discussion of good faith as recurring in section in 23, but took it as "not belonging" and did not include it there.[96] In the Guodian and Mawangdui versions, section 17 is combined with its similarly political section 18. The typical reader would in any case find Duyvendak more readable than the Mawangdui.[97] Translator Harris take's Shen Dao's "Understanding Loyalty" as "including a concern that a focus on loyalty arises only when things have already begun to go wrong."[98]

> In highest (antiquity) one did not even know there were rulers (or merely knew there were rulers)...
> If good faith (of the prince towards the people) is inadequate, good faith (of the people towards the ruler) will be wanting.
> Thoughtful were (the sage rulers), valuing their words!
> When the work was done and things ran smoothly, the people all said: "We have done it ourselves!"....
> When the great Way declines, there is "humanity and justice".
> When state and dynasty are plunged in disorder, there are "loyal ministers".(Duyvendak 17-18)[99]

## School of names

[edit]

Words and names are essential to administration,[100] and discussion on the connection between realities and their names were common to all schools in the classical period (500bce-150bce), as including the Mohists and posthumous categories of Daoists, Legalists and School of Names. Its earlier thinking was actually most developed by the Confucians, while later thinking was characterized by paradoxes. Shen Dao and Daoism question the premises of prior schools, in particular that of the Confucians and Mohists, representing an even higher degree of relativist skepticism. Nonetheless, together with the earlier Shen Buhai and Xun Kuang, Han Fei can still be compared with the early Confucian rectification of names, inasmuch as his scope is bureaucratically narrower in focus than that of general philosophy.[101]

Although more or less representing an actual social category of debaters,[102] Sima Qian divided the schools (or categories) along elemental lines, as including Ming ("names", the usage of words in philosophy and administration including contracts) for the Mingjia School of Names, and fa (standards including law and method) for those later termed Fajia ("Legalists").[103] Engaging in discussions of "sameness and difference", such distinctions would naturally be useful in litigation and administration.[104]

The practices and doctrines of Shen Buhai, Han Fei and the school of names are all termed Mingshi (name and reality) and Xingming (form and name). The administrators of both groupings have both elements, and share the same concerns, evaluating bureaucratic performance, and the structural relation between ministers and supervisors. The school of names mingjia can also inaccurately be translated as Legalists,[105] using fa comparative models for litigation.[104] The Zhuangzi slanders those who place the practice of Xingming and rewards and punishments above the wu-wei reduced activity of the ruler as sophists and "mere technicians";[106] the Han dynasty term Mingjia is applied to them.[103]

The Qin dynasty used comparative model manuals to guide penal legal procedure,[107] and the final chapter of the Book of Lord Shang certainly "focuses on how to maintain law in a large territorial realm." But the old harsh punishments of Shang Yang aside, in either case, no one actually ruled primarily by penal law. The primarily administrative Qin dynasty instituted office divisions that cannot punish at will; penal law supplemented the ritual order.[108] Penal law develops more in the Han dynasty that coins the terms.[109]

### The Han Feizi's lineage

[edit]

Shang Yang can be considered pioneering in the advancement of fa (standards) as law and governmental program more generally,[110] but his early administrative method more simply connects names with benefits like profit and fame, to try to convince people to pursue benefits in the interest of the state.[111] More advanced Names and Realities discussions date to the later Warring States period, after Shang Yang, Shen Buhai, and Mencius.[112]

Prior Shen Buhai, Xingming likely originates earlier in the school of names. The Zhan Guo Ce quotes one of their paradoxes: "Su Qin said to the King of Qin, 'Exponents of Xingming all say that a white horse is not a horse.'" Su Qin nonetheless took Gongsun Long's white horse paradox to be a Xingming administrative strategy. Other people were simply not intended to understand it.[113] Despite opposition to their paradoxes, the Han Feizi provides a white horse strategy: the chief minister of Yan pretended to see a white horse dash out the gate. All of his subordinates denied having seen anything, save one, who ran out and returned claiming to have seen it, identifying him as a flatterer.[114]

An early bureaucratic pioneer, Shen Buhai was not so much more advanced as he was more focused on bureaucracy, but can be taken as of the originator of the "Legalist doctrine of names" as understood by the later Han dynasty. As a basic explanation of Xingming, Han Fei terms Shen Buhai's fa Method, Technique (Shu), saying: "Method is to confer office in accordance with a candidate's capabilities; to hold achievement accountable to claim; and to examine the ability of the assembled ministers. This is controlled by the ruler."

Han Fei's late tradition develops its own unique names and realities (Xing-Ming) method. Naming individuals to their roles as ministers (e.g. "Steward of Cloaks"), in contrast to the earlier Confucians, Han Fei holds ministers accountable for their proposals, actions and performance. Their direct connection as an administrative function cannot be seen before Han Fei;[115] the late Warring States theories of Xun Kuang and the Mohists were still far more generalized.[116]

## Eradicating punishments

[edit]

Translator Yuri Pines takes the Book of Lord Shang's final chapter 26 as reflecting administrative realities of the 'late preimperial and Imperial Qin', essentially congruous with knowledge of the Qin. Although seeking governance more broadly, protecting the people from abuse by ministers becomes more important than punishing the people. Taken as universally beneficial, in an attempt to deliver the "blessed eradication of punishments through punishments", clear laws are promulgated and taught that the people can use against ministers abusing the statutes, punishing them according to the penalties of the statute abused. Han Fei advocates the same, but is more focused on accomplishing it through the administrative power of the ruler.[117]

If at least part of the Han Feizi dates date to its period, the Shangjunshu could have circulated on the eve of unification. The work's adoption by the Han Feizi can give the appearance of a living current for the old harsh punishments of Shang Yang, that can be mistakenly imposed backward. Pine's work in the Stanford Encyclopedia accepts a long status quo within scholarship: Whatever events really transpired, the Qin had otherwise abandoned the harsh punishments of Shang Shang before unification. The Book of Lord Shang itself is not a homogeneous ideology, but shifts substantially over its development. As the work's first reference, the Han Feizi recalls its earlier Chapter 4, saying:[118][4]

> Gongsun Yang said: "When [the state] implements punishments, inflicts heavy [punishments] on light [offenses]: then light [offenses] will not come, and heavy [crimes] will not arrive. This is called: 'eradicating punishments with punishments'.

As Pines recalls, even if the Shangjunshu only passingly suggests that a need for punishment would pass away, and a more moral driven order evolve, the Qin nonetheless did abandon them.[4] As a component of general colonization, the most common heavy punishment was expulsion to the new colonies, with exile considered its own heavy punishment in ancient China. The Han engage in the same practice, transferring criminals to the frontiers for military service, with Emperor Wu and later emperors recruiting men sentenced to death for expeditionary armies. The Qin have mutilating punishments like nose cutting, but with tattooing as most common, with shame its own heavy punishment in ancient China. They are not harsher for their time, and form a continuity with the early Han dynasty,[119] abolishing mutilations in 167 BC.[120][121]

Punishments in the Qin and early Han were commonly pardoned or redeemed in exchange for fines, labor or one to several aristocratic ranks, even up to the death penalty. Not the most common punishments, the Qin's mutilating punishment likely exist in part to create labor in agriculture, husbandry, workshops, and wall building.[122] Replacing mutilation, labor from one to five years becomes the common heavy punishment in early Imperial China, generally in building roads and canals.[123]

### Han Feizi

[edit]

For Han Fei, the power structure is unable to bare an autonomous ministerial practice of reward and punishment. Han Fei mainly targets ministerial infringements. His main argument for punishment by law, Chapter 7's The Two Handles, is that delegating reward and punishment to ministers has led to an erosion of power and collapse of states in his era, and should be monopolized, using severe punishment in an attempt to abolish ministerial infringements, and therefore punishment. Utilizing fa standards, Han Fei's ruler abandons personal preferences in reward and punishment out of self-preservation.[124]

While Han Fei believes that a benevolent government that does not punish will harm the law, and create confusion, he also believes that a violent and tyrannical ruler will create an irrational government, with conflict and rebellion.[125] Shen Dao, technically the first member of Han Fei's triad between the figures, at least by order of chapters, never suggests kinds of punishments, as that is not the point. The main point is that it would involve the ruler too much to decide them personally, exposing him to resentment. The ruler should decide punishments using fa standards.[126]

Han Fei does does not suggest kinds of punishments either, and would not seem to care about punishment as retribution itself. He only cares whether they work, and therefore end punishments. Although "benevolence and righteousness" may simply be "glittering words", other means can potentially be included. While recalling Shang Yang, Han Fei places a more equal emphasis on reward to encourage people and produce good results; punishment for him was still secondary to simply controlling ministers through techniques. Although in bad times these could be expected to include espionage, they consisted primarily simply in written agreements.[127]

### Justice

[edit]

Emphasizing a dichotomy between the people and state, the Book of Lord Shang in particular has been regarded as anti-people, with alienating statements that a weak people makes a strong military. But, such statements are concentrated in a few chapters, and the work does still vacillate against ministerial abuses.[4] Michael Loewe still regarded the laws as primarily concerned with peace and order. They were harsh in Shang Yang's time mainly out of hope that people will no longer dare to break them.[128][4]

Sima Qian argues the Qin dynasty, relying on rigorous laws, as nonetheless still insufficiently rigorous for a completely consistent practice, suggesting them as not having always delivered justice as others understood it.[129] Still, from a modern perspective, it is "impossible" to deny at least the "'basic' justice of Qin laws". Rejecting the whims of individual ministers in favor of clear protocols, and insisting on forensic examinations, for an ancient society they are ultimately more definable by fairness than cruelty.

With contradicting evidences, as a last resort, officials could rely on beatings, but had to be reported and compared with evidence, and cannot actually punish without confession. With administration and judiciary not separated in ancient societies, the Qin develop the idea of the judge magistrate as a detective, emerging in the culture of early Han dynasty theater with judges as detectives aspiring to truth as justice.[130][131]

Inasmuch as Han Fei has modernly been related with the idea of justice, he opposes the early Confucian idea that ministers should be immune to penal law. With an at least incidental concern for the people, the Han Feizi is "adamant that blatant manipulation and subversion of law to the detriment of the state and ruler should never be tolerated":[132]

> Those men who violated the laws, committed treason, and carried out major acts of evil always worked through some eminent and highly placed minister. And yet the laws and regulations are customarily designed to prevent evil among the humble and lowly people, and it is upon them alone that penalties and punishments fall. Hence the common people lose hope and are left with no place to air their grievances. Meanwhile the high ministers band together and work as one man to cloud the vision of the ruler.

## Sources in Legalist Mythos

[edit]

### Jia Yi (200–169 BCE)

[edit]

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

Being both a Daoistic and Confucian doctrine, he favored the practice of Wu wei, or non-action by the ruler, against the practice of law. Despite advocating wuwei inaction by the ruler, and writing the Ten Crimes of Qin in opposition to harsh punishments, figures like Jia Yi were opposed for attempting to regulate the bureaucracy, leading to his banishment under ministerial pressure. The Emperor sent him to teach his sons. Mark Edward Lewis modernly characterized it as a politically motivated mythos.[133]

### Liu An (179–122 bce)

[edit]

Sinologists Herrlee G. Creel and Yuri Pines cite the Huainanzi, associated with Liu An (179–122 bce), as the earliest combinational gloss of Shen Buhai with Shang Yang, comparing them as one person with harsh punishments to their own doctrine.[134] Positively receiving reunification of the empire, the text opposes centralized government and the class of scholar-officials. With ideas of wuwei nonaction, the Huainanzi recommends that the ruler put aside trivial matters, and follow the ways of Fuxi and Nüwa, abiding in Empty Nothingness and Pure Unity. Placing ritual specialists lower than heavenly prognosticators, and aiming to demonstrate how every text that came before it is now part of its own integral unity, the Huainanzi posed a threat to the Han court. Chapter 1 is based most strongly on Laozi, but otherwise most strongly resonates with the Zhuangzi, with influences from the Hanfeizi, Lüshi chunqiu, Mozi, and Guanzi, the Classic of Poetry, etc.[135]

> When the First Emperor of Qin conquered the world, he feared that he would not be able to defend it. Thus, he attacked the Rong border tribes, repaired the Great Wall, constructed passes and bridges, erected barricades and barriers, equipped himself with post stations and charioteers, and dispatched troops to guard the borders of his empire. When, however, the house of Liu Bang took possession of the world, it was as easy as turning a weight in the palm of your hand.

> In ancient times, King Wu of Zhou... distributed the grain in the Juqiao granary, disbursed the wealth in the Deer Pavilion, destroyed the war drums and drumsticks, unbent his bows and cut their strings. He moved out of his palace and lived exposed to the wilds to demonstrate that life would be peaceful and simple. He lay down his waist sword and took up the breast tablet to demonstrate that he was free of enmity. As consequence, the entire world sang his praises and rejoiced in his rule while the Lords of the Land came bearing gifts of silk and seeking audiences with him. [His dynasty endured] for thirty-four generations without interruption.

> Therefore the Laozi says: “Those good at shutting use no bolts, yet what they shut cannot be opened; those good at tying use no cords, yet what they tie cannot be unfastened.” 12.47

### Sima Qian's Daojia

[edit]

Sima Qian's work is clearly political, and all of his 'schools' descriptively flawed, orbiting his empty Dao-school, which "responds to the transformation of things".[103] It is clearly based on Shen Buhai and Han Fei's administrative practice of 'xingming', or form and name, functioning as a court of ministers contracted by a wu wei "inactive" ruler. With predecessors in the school of names, Shen Buhai and Han Fei are the first visible advocates of its form of government, with Chapter 5 a primary example.[136] As a practice clearly derived of them, Han Emperors practiced wu wei reduced activity until the reign of Emperor Wu of Han (141-87bce), limiting themselves to the appointment of high ministers.[137]

Sima Qian depicts Imperial Chancellor Li Si as citing Han Fei's chapter 43 to the Qin dynasty's Second Emperor. Originally a Confucian doctrine, Li Si is depicted as mischaracterizing Shen Buhai's doctrine of leaving duties to ministers to encourage the indolence and subservience of the young Emperor, disastrously restoring the harsh laws of Shang Yang. Hailing from the small Hann state, Shen Buhai's "inactive" ruler was still supposed to take an active role in overseeing the administration; Shen Buhai advocates that he stop doing everyone elses work.[138] If its event occurred, the Qin would otherwise appear to have prior abandoned the harsh punishments of Shang Yang before the founding of the Qin dynasty.[139]

If the Li Si was the Legalist nemesis Sima Qian portrays him as, Han governors who had been his students were earlier famous for their clemency. Together with Han Emperors like Wen who practiced Xingming, they reduced capital punishment, with Emperor Wen abolishing mutilitations.[140]

### The Fa School

[edit]

Inasmuch as the term Legalism has been used modernly, Dingxin Zhao characterizes the Western Han as developing a Confucian-Legalist state.[141]

Liu An, as traditional author of the Huang-Lao typified Huainanzi, would be suppressed together with the Huang-Lao faction by other potential Han Feizi students, the Shang Yangian Emperor Wu of Han (reign 141-87bce), Gongsun Hong and Zhang Tang. Under Confucian factional pressure, Emperor Wu dismisses the Yellow Emperor Daoists, xingming theoreticians, and those of other philosophies, and discriminates against scholars of Shang Yang, Shen Buhai and Han Fei. When older, those officials who praised Shang Yang and Li Si and denounced Confucius were upheld. Together with that of the Confucians, the imperial examination system would be instituted through the likely influence of Shen Buhai and Han Fei, who advocated appointment by methodologies of performance checking.[142]

Undoubtedly associating Shang Yang primarily with penal law, no received Han text ever attempted to individually argue or obfuscate Shen Buhai a penal figure. Contrasting with Confucius and the Zhou dynasty, Dong Zhongshu (179–104 BC) simply associates Shen Buhai and Shang Yang with the Qin again as reportedly implementing the ideas of Han Fei. Asserting that the Qin, with high taxes and oppressive officials, had declined amidst a failure to punish criminals, he proceeds to associate laws, punishments and meritocratic appointment with the Zhou.[143]

With Sima Qian's categories already popular by their time, Imperial Archivists Liu Xiang (77–6BCE) and Liu Xin (c.46bce–23ce) placed Han Fei's figures. They associate the schools with ancient departments, with the fa-school "probably originating in the department of prisons", whose descendants, then, failed to punish criminals. Fajia becomes a category of texts in the Han state's own Book of Han (111ce), with Dong Zhongshu's argument included in its Chapter 56 Biography.[144]

> The fajia are strict and have little kindness, but their divisions between lord and subject, superior and inferior, cannot be improved upon… Fajia do not distinguish between kin and stranger, or differentiate between noble and base; all are judged as one by their fa. Thus they sunder the kindnesses of treating one’s kin as kin and honoring the honorable. It is a policy that could be practiced for a time, but not applied for long. But for honoring rulers and derogating subjects, and clarifying social divisions and offices so that no one is able to overstep them—none of the Hundred Schools could improve upon this.[145] Shiji 120:3291

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[edit]

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142. ^ Vankeerberghen 2001, p. 24,96; Creel 1960, p. 239,241; Creel 1970, p. 110-111,115-120; Lewis 1999, p. 491; Makeham 1994, p. 180.
143. ^ Creel 1970, p. 101; Loewe 2011, p. 93-94; Pines 2017, p. 44-45; Major 2015, p. 186,194,632.
144. ^ Hansen 1992, p. 13,345-347,375-376; Creel 1970, p. 95,101,107,113; Goldin 2011, p. 108,112(15,24); Youlan 1948, p. 32–34; Pines 2023; Smith 2003, p. 96–98(8,10).
145. ^ Goldin 2011, p. 91.

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