2015/5/15 Prof. Frederick Hok-ming CHEUNG Legalism.

112/04/18112/04/18Prof. Frederick Hok-ming Prof. Frederick Hok-ming

CHEUNGCHEUNG

LegalismLegalism

The legalists The legalists

A group of philosophers and practical A group of philosophers and practical politicians known as the Legalists, who politicians known as the Legalists, who were closely associated with the state were closely associated with the state of Chof Ch’’in.in.

A leading thinker of this school was Han A leading thinker of this school was Han Fei Tzu (d.233B.C.) & a prominent Fei Tzu (d.233B.C.) & a prominent ChCh’’in statesman identified with it was in statesman identified with it was Li Ssu (d.208B.C) were both disciples Li Ssu (d.208B.C) were both disciples of Hsun Tzu. (c.300-237B.C.) of Hsun Tzu. (c.300-237B.C.)

Hsun Tzu was a Confucian who left a deep Hsun Tzu was a Confucian who left a deep mark on Chinese civilization, though he mark on Chinese civilization, though he was condemned by later Confucians as was condemned by later Confucians as unorthodox (probably because he was unorthodox (probably because he was opposite to Mencius in many aspects of opposite to Mencius in many aspects of ideas).ideas).

Nevertheless, in his day, Hsun Tzu was a Nevertheless, in his day, Hsun Tzu was a great success both as a politician and great success both as a politician and teacher, and sections of his book, the teacher, and sections of his book, the Hsun TzuHsun Tzu, which is made up of well-, which is made up of well-organized essays, was incorporated into organized essays, was incorporated into the the Record of RitualsRecord of Rituals..

Hsun Tzu flatly contradicted MenciusHsun Tzu flatly contradicted Mencius’’ basic basic idea that man is naturally good. idea that man is naturally good.

Human nature, Hsun Tzu argued, is derived Human nature, Hsun Tzu argued, is derived from an impersonal, amoral Heaven; from an impersonal, amoral Heaven; manman’’s emotions and natural desires lead s emotions and natural desires lead to conflict and therefore is bad. The cure to conflict and therefore is bad. The cure for this situation is improvement through for this situation is improvement through education. His emphasis on education, education. His emphasis on education, rituals, an hierarchic order, and strict ruler rituals, an hierarchic order, and strict ruler through warnings and punishments seem through warnings and punishments seem to have contributed to a growing to have contributed to a growing authoritarian trend in government. authoritarian trend in government.

Nevertheless, Legalist ideas found full Nevertheless, Legalist ideas found full exposition in the Han Fei Tzu written by the exposition in the Han Fei Tzu written by the philosopher, philosopher, Han Fei TzuHan Fei Tzu, who was a , who was a member of the royal house of the state of member of the royal house of the state of Han. He was said to have studied under Han. He was said to have studied under Hsun Tzu at the same time as Li Ssu who Hsun Tzu at the same time as Li Ssu who subsequently became the prime minister of subsequently became the prime minister of ChCh’’in. When the state of Han was on the in. When the state of Han was on the verge of collapse in the face of the attack by verge of collapse in the face of the attack by ChCh’’in, Han Fei was sent as envoy to Chin, Han Fei was sent as envoy to Ch’’in. in. Although the king of ChAlthough the king of Ch’’in was pleased with in was pleased with him, he was said to have died as a result of him, he was said to have died as a result of the machination or trick & trap of Li Ssu, the machination or trick & trap of Li Ssu, who was jealous of his superior talent. who was jealous of his superior talent.

[At first, Li Ssu was not afraid of Han [At first, Li Ssu was not afraid of Han Fei Tzu (even though he was Fei Tzu (even though he was extremely talented, because Han Fei extremely talented, because Han Fei Tzu was not fluent in spoken Tzu was not fluent in spoken language- he easily got tongue-tied. language- he easily got tongue-tied. But then, despite of that, the king of But then, despite of that, the king of ChCh’’in was pleased with Han Fei Tzu, in was pleased with Han Fei Tzu, so Li Ssu worried that the king of so Li Ssu worried that the king of ChCh’’in might replace himself with Han in might replace himself with Han Fei Tzu as prime minister, therefore, Fei Tzu as prime minister, therefore, Li Ssu imprisoned Han Fei Tzu and Li Ssu imprisoned Han Fei Tzu and executed him.) executed him.)

In his though, Han Fei Tzu combined In his though, Han Fei Tzu combined the teachings of a number of schools the teachings of a number of schools to form the system known as Legalist to form the system known as Legalist thought. It combined thought. It combined ““the ruler of the ruler of lawlaw”” ( (fa)fa) advocated by Lord Shang advocated by Lord Shang ““the methods of dealing with the the methods of dealing with the subjectssubjects”” ( (shushu) advocated by Shen ) advocated by Shen Pu-hai, and Pu-hai, and ““the exploitation of the the exploitation of the vantage position of the rulervantage position of the ruler”” ( (shihshih) ) advocated by Shen Tao. advocated by Shen Tao.

Lord Shang was a descendant of the Lord Shang was a descendant of the ducal family of Wei.ducal family of Wei.

His given name was Yang.His given name was Yang.

In his youth, he was fond of the studies In his youth, he was fond of the studies of criminal law; and he had served of criminal law; and he had served the Minister of Wei. Later, Shang the Minister of Wei. Later, Shang Yang went to the State of ChYang went to the State of Ch’’in in where he greatly pleased Duke Hsiao where he greatly pleased Duke Hsiao of Chof Ch’’in and was appointed as a in and was appointed as a councilor.councilor.

He order the people to be organized into He order the people to be organized into groups of fives and tens, mutually to groups of fives and tens, mutually to control one another and to share in one control one another and to share in one anotheranother’’s punishments. Whoever did s punishments. Whoever did not denounce a culprit would be cut in not denounce a culprit would be cut in two;two;

Whoever denounced the culprit would Whoever denounced the culprit would receive the same reward as he who receive the same reward as he who decapitated an enemy;decapitated an enemy;

Whoever concealed a culprit would Whoever concealed a culprit would receive the same punishment as he receive the same punishment as he who surrendered to an enemy.who surrendered to an enemy.

When the ordinances were already drawn up When the ordinances were already drawn up but still unpublished, feaing that the but still unpublished, feaing that the people would not believe it, Lord Shang people would not believe it, Lord Shang had a 30feet pole erected near the south had a 30feet pole erected near the south gate of the capital, and announced to the gate of the capital, and announced to the people that he would give 10 oz of gold to people that he would give 10 oz of gold to anyone who could move it to the north anyone who could move it to the north gate. The people found that strange; there gate. The people found that strange; there was no one who dared move it. was no one who dared move it. Thereupon, Lord Shang announced that he Thereupon, Lord Shang announced that he would give 50 oz of gold to make it clear would give 50 oz of gold to make it clear that he deceived no one. that he deceived no one.

Han Fei Tzu is the last figure in LegalismHan Fei Tzu is the last figure in Legalism’’s s development, and he in fact brought all the development, and he in fact brought all the earlier contributors to that development earlier contributors to that development together into a grand synthesis.together into a grand synthesis.

1.1. ““the ruler of lawthe ruler of law””2.2. ““the political methods of dealing with the the political methods of dealing with the

subjectssubjects””3.3. ““the exploitation of the vantage position of the the exploitation of the vantage position of the

ruler or powerruler or power””

are the three principal concepts in his are the three principal concepts in his thought-system, all were the products of thought-system, all were the products of historical circumstances; they were historical circumstances; they were conceived, given birth, and nurtured; then conceived, given birth, and nurtured; then coming to Han Fei Tzu, they took on the coming to Han Fei Tzu, they took on the form of their ultimate maturity.form of their ultimate maturity.

The historical circumstances that The historical circumstances that conceived, gave birth to, and conceived, gave birth to, and nurtured those concepts were, in a nurtured those concepts were, in a word, simply those various social and word, simply those various social and political realities through which the political realities through which the old feudal world disintegrated and old feudal world disintegrated and collapsed. The direct consequence of collapsed. The direct consequence of feudalismfeudalism’’s collapse was the s collapse was the weakening of the Son of Heaven of weakening of the Son of Heaven of Chou, and the strengthening of the Chou, and the strengthening of the feudal lords.feudal lords.

Government by means of power had its Government by means of power had its origins in the elevation of the ruler. When origins in the elevation of the ruler. When the feudal order of Chou Dynasty was the feudal order of Chou Dynasty was declining, gradually, the powerful ministers declining, gradually, the powerful ministers took over the states. The Legalists not only took over the states. The Legalists not only recognized the logic of this new historical recognized the logic of this new historical reality, they also added their explanations reality, they also added their explanations on it. Theories of authority and power on it. Theories of authority and power consequently took form. Shen Tao, with his consequently took form. Shen Tao, with his Phrases about flying dragons and soaring Phrases about flying dragons and soaring serpents (metaphors suggesting the serpents (metaphors suggesting the sovereignsovereign’’s shih, or power) can be looked s shih, or power) can be looked upon as the representative figure in the upon as the representative figure in the emergence of these theories. emergence of these theories.

Governing with Governing with ““methodsmethods”” took form with took form with Shen Pu-hai. It is also related to the Shen Pu-hai. It is also related to the elevation of the ruler, but in particular, it elevation of the ruler, but in particular, it was a response to political needs following was a response to political needs following the collapse of the feudal system of the the collapse of the feudal system of the Chou Dynasty Chou Dynasty –– cases of assassinations of cases of assassinations of lords and usurpation of thrones were lords and usurpation of thrones were frequent. Analysts tracing the causes could frequent. Analysts tracing the causes could lay the blame on rulerslay the blame on rulers’’ lack of methods in lack of methods in handling their ministers. Therefore, the handling their ministers. Therefore, the Legalists on the art ruling eventually began Legalists on the art ruling eventually began to produce theories about governing by to produce theories about governing by ““methodsmethods””..

Cf. Machiavelli, Cf. Machiavelli, The PrinceThe Prince

In ancient Greece, Plato, in his theories of In ancient Greece, Plato, in his theories of government, first erected the ideal of the government, first erected the ideal of the absolute ruler by a philosopher-king, but absolute ruler by a philosopher-king, but subsequently discovered that this was a subsequently discovered that this was a practical impossibility, and changed his views practical impossibility, and changed his views to support a legalist polity. His intent was to to support a legalist polity. His intent was to replace the impractical ideal of the replace the impractical ideal of the enlightened ruler with that of good laws enlightened ruler with that of good laws capable of being enforced. Thereafter, having capable of being enforced. Thereafter, having gone through successive developments, this gone through successive developments, this concept has at last splendidly emerged as concept has at last splendidly emerged as the modern theory and practice of the modern theory and practice of constitutional government.constitutional government.

Lord Shang applied himself to the ruler Lord Shang applied himself to the ruler of law; Shen Tao clarified the subject of law; Shen Tao clarified the subject of power, and Shen Pu-hai discoursed of power, and Shen Pu-hai discoursed on methods; Han Fei Tzu synthesized on methods; Han Fei Tzu synthesized the three bodies of thought, taking the the three bodies of thought, taking the rulerruler’’s power as the basic substance, s power as the basic substance, and regarding laws and methods as its and regarding laws and methods as its functions or applicationsfunctions or applications……....

From these elements, Han Fei Tzu From these elements, Han Fei Tzu created and brought to completion the created and brought to completion the most comprehensive system of most comprehensive system of Legalist thought.Legalist thought.

Lord Shang and Han Fei Tzu failed to Lord Shang and Han Fei Tzu failed to realize how difficult it is to have an realize how difficult it is to have an enlightened monarch. Therefore, enlightened monarch. Therefore, they developed their ruler-centered they developed their ruler-centered Legalist political thought, and Legalist political thought, and succeeded only in opening the door succeeded only in opening the door for subsequent dictator.for subsequent dictator.

Cf. Karl Popper, Cf. Karl Popper, The Open Society and The Open Society and Its EnemyIts Enemy (Vol.1: The Spell of Plato) (Vol.1: The Spell of Plato)

It was in the 4th to 3rd centuries B.C. that It was in the 4th to 3rd centuries B.C. that we see the full emergence of the theory of we see the full emergence of the theory of Legalism with the figures Shang Yang, Legalism with the figures Shang Yang, Sheng Pu-hai, Shen Tao, and Han Fei Tzu.Sheng Pu-hai, Shen Tao, and Han Fei Tzu.

Han Fei Tzu was considered the grand Han Fei Tzu was considered the grand synthesizer of Legalist thought.synthesizer of Legalist thought.

According to Han Fei Tzu, Lord Shang is According to Han Fei Tzu, Lord Shang is preeminently the theorist of preeminently the theorist of fa fa (the rule of (the rule of law), while Shen Pu-hai is the theorist of law), while Shen Pu-hai is the theorist of shushu (bureaucratic method or technique), (bureaucratic method or technique), and Shen Tao is the theorist of and Shen Tao is the theorist of shihshih (authority).(authority).

Lord ShangLord Shang’’s s fa fa stress severe punishment stress severe punishment (penal law) more than positive reinforcement (penal law) more than positive reinforcement of rewards.of rewards.

Shen Pu-haiShen Pu-hai’’s s shushu usually translated as usually translated as ““methodmethod’’ or or ““techniquetechnique”” –– the technique of the technique of organizing and controlling an effective organizing and controlling an effective bureaucracy.bureaucracy.

Han Fei Tzu perceives that the doctrines of Lord Han Fei Tzu perceives that the doctrines of Lord Shang and Shen Pu-hai are as complimentary Shang and Shen Pu-hai are as complimentary as food and clothing. Lord Shangas food and clothing. Lord Shang’’ss fa fa provided the program for controlling the provided the program for controlling the entire society. Shen Pu-haientire society. Shen Pu-hai’’s s shushu provided the provided the organization for implementing the organization for implementing the enlightened rulerenlightened ruler’’s program.s program.

Because Lord Shang neglected the principle Because Lord Shang neglected the principle of proper bureaucratic organization, various of proper bureaucratic organization, various powerful elements in the state were able to powerful elements in the state were able to maintain their own bases of power even to maintain their own bases of power even to use Lord Shanguse Lord Shang’’s reforms to enhance their s reforms to enhance their own power. Lord Shangown power. Lord Shang’’s own tragic death s own tragic death resulted from this fatal oversight in the resulted from this fatal oversight in the matter of the control of officials.matter of the control of officials.

Han Fei Tzu seems to have sought the Han Fei Tzu seems to have sought the ultimate common foundation of Legalism at ultimate common foundation of Legalism at a deeper level. What penal laws and a deeper level. What penal laws and bureaucratic devices have in common is bureaucratic devices have in common is that they are all universalistic, impersonal, that they are all universalistic, impersonal, and objective mechanisms for controlling and objective mechanisms for controlling human behavior.human behavior.

In Han Fei TzuIn Han Fei Tzu’’s synthesis, we find a s synthesis, we find a third component which in his view third component which in his view had been neglected by both Shang had been neglected by both Shang Yang and Shen Pu-hai Yang and Shen Pu-hai –– Shen Tao Shen Tao’’s s principle of authority (principle of authority (shihshih).).

The entire system in the end rests on The entire system in the end rests on the authority of the ruler. Without the authority of the ruler. Without authority, the ruler cannot be the authority, the ruler cannot be the ultimate source of all the impersonal ultimate source of all the impersonal codes and mechanisms of control codes and mechanisms of control which maintain the entire social which maintain the entire social order.order.

In recent years, the Legalists have In recent years, the Legalists have often called totalitarians. In their own often called totalitarians. In their own days, they were reactionary in their days, they were reactionary in their unquestioning acceptance of royal unquestioning acceptance of royal absolutism. At the same time, they absolutism. At the same time, they were undoubtedly in their emphasis were undoubtedly in their emphasis on a universal system of law and on a universal system of law and impersonal, uniform relations impersonal, uniform relations between the government and the between the government and the people it ruled.people it ruled.

Despite the condemnation of later Despite the condemnation of later ages (about its inhumane, ages (about its inhumane, impersonal ruler), Legalism left a impersonal ruler), Legalism left a lasting mark on Chinese civilization. lasting mark on Chinese civilization. Through the triumph of ChThrough the triumph of Ch’’in and the in and the imperial system that Chimperial system that Ch’’in originated, in originated, it became an important part of the it became an important part of the Chinese political tradition, partially Chinese political tradition, partially accounting for the highly centralized accounting for the highly centralized government of later times and its government of later times and its harsh and strict rule. harsh and strict rule.