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Chinese Thought and Philosophy
Legalism


Legalism (or legism) is a state philosophy flourishing during the Warring States period 戰國 (5th cent.-221 BCE). It became the leading doctrine under the Qin dynasty 秦 (221-206 BCE) and was, together with Confucianism, the philosophical foundation of the Chinese state administration at least until the end of the Qing dynasty 清 (1644-1911). The core concept of the legalists is that state and society are effectively organised by administrative and penal law (fazhi 法治 "rule by law") that is applied to all persons equally. Forerunners of a recommendation of a bureaucratic state were Guan Zhong 管仲 from Qi 齊, Guo Yan 郭偃 from Jin 晉 and Zichan 子產 from Zheng 鄭, but the real founders of the idea of the "legalist" state were Li Kui 李悝, Wu Qi 吳起, Shang Yang 商鞅, Shen Dao 慎到, Shen Buhai 申不害, the theoretician Han Fei 韓非, and – as a practicioner – Li Si 李斯, counsellor to the First Emperor of Qin 秦始皇帝 (r. 246-210 BCE).
The term fajia 法家 "legalists" first appears in the introduction to Sima Qian's 司馬遷 book Shiji 史記 (where he quotes from the treatise Lun liujia zhi yaozhi 論六家之要指 written by his father Sima Tan 司馬談), where it is said that "the legalists do not discern between relatives and non-relatives, between nobles and commoners, but do judge everyone according to the law". Ban Gu 班固, author of the history Hanshu 漢書, says that legalism originated in the regulations for the palace officials.

Early Legalism

While Confucius had been of the opinion, that ritual prescriptions (li 禮), etiquette (yi 儀) and personal models of virtual conduct (de 德) were sufficient to create coherence and orderliness in society (lizhi 禮治 "rule by etiquette and ceremonial"), later adherents of the Confucian school like Xunzi 荀子 became aware that in fact, "rituals" had the function to coerce people to behave to others fairly and just. Guan Zhong and Zichan expanded the models of the ritual codices to the sphere of penal and administrative law. In the states of Qi, Jin and Zheng, the ancient aristocracy as holders of fiefs was replaced by bureaucrats administrating state-owned fields and the communities. Altough in these states, the rulers obtained a more powerful position – because they got rid of the aristocracy – personal conduct and the exemplarious, educative (jiaohua 教化) effect of moral behaviour still played an important role, side by side with edicts (ling 令) and law (fa 法). The virtue of the ruler, in accordance with Heaven, was even more important than penal law, i.e. rule by authority. Guan Zhong is therefore not always identified as a legalist statesman. Yet his reforms towards a bureaucratic government made in an important forerunner of the legalist state as it operated in practice.

"Authority, Skill, and the Law"

This first, "soft" type of legalism was soon replaced by a more strict form that neglected all influence of moral behaviour on the order of society. This type of legalism in a narrower sense developed in the state of Qin and the successor states of Jin, namely Wei 魏, Han 韓 and Zhao 趙. Li Kui, counsellor of Wei, stressed that the sole method to strengthen the power of a state was to enhance agricultural productivity and to built up a large army. The peasantry so became the foundation of the Chinese state, both as deliverer of taxes in the shape of grain, of corvée labour, and military service. Li Kui collected the law codices of all states and used these to compile the code of the state of Wei, the Fajing 法經. The Fajing, of which only very scarce fragments have survived, included laws concerning robbery (Daofa 盜法), theft (Zeifa 賊法), prisons (Qinfa 囚法), arresting criminals (Bufa 捕法), miscellanea (Zafa 雜法), and penal instruments (Jufa 具法). At the same time, Wu Qi undertook a military reform in the state of Wei and later in Chu 楚. Both reformers also took care for the strengthening of the king's authority (shi 勢) by eliminating other nobles from important administrative positions. As can be seen from the chapters of the Fajing, penal law played the most important role. Even in later, Qin period law codices, administrative regulations are in fact penal regulations against disobedient or failing bureaucrats. Penalty (xing 刑) and punishment (fa 罰) became the main instrument of controlling the bureaucracy, while rewards (shang 賞) and benevolence were often regarded as less crucial for a well-functioning bureaucracy. In the eyes of the legalists, punishment and reward were easily applicable because man by nature is seeking his own profit (li 利) and therefore avoids punishment and aspires remuneration. In Shang Yang's eyes (his book Shangjunshu 商君書 is preserved in larger fragments) reward was especially useful to incite the productive spirit of peasants or the fighting spirit of generals. Very interesting is indeed the etymology of the character for the word fa "law" (法, often written in a long shape 灋), which means "to balance, to equalize", or, more concretely, "to apply the law equally to all". This meaning reflects social changes that enabled everyone to climb the ladder of social positions, and made a crown prince a subject of the ruler like any other person. The term fa has also the meaning of a "standard" that can be adhered to in any case and that serves as a model. Shen Buhai (his book was called Shenzi 申子, only surviving in fragments) spoke of a kind of skill (shu 術) with which the ruler had to balance appointments and dismissions, rewards and punishments. The last two were seen as the main handles (bing 柄) with the help of which the ruler would be able to control the bureaucracy. Even in such a mechanic environment, the Confucian principle of comparing designation (ming 名) with reality (shi 實) was adhered to, according to which the ruler was to check if a certain minister properly administered his own ressort, and nothing else. The bureaucrats were seen as the most dangerous enemy of the ruler and therefore had to be checked and restricted by all means. The enlightened ruler (ming zhu 明主) had to interview all his ministers separately (du ting 獨聽, du duan 獨斷) in order to forestall collusions. Shen Dao had a very Daoist imagination of a ruler's role, as can be seen in the preserved fragments of his book Shenzi 慎子. His authority was ensured by the use of laws instead of personal decisions. Bureaucratic laws were seen as a kind of natural law. Once put into function, they would make sure that the whole state would move without any further interference by the ruler. This idea corresponds to the Daoist concept of wuwei 無為 "non-acting" because activism might destroy the natural course of the world. The ruler was not any more an individual person but, just like the law itself, only the functional centre of the world. This centre could not consist for itself but only in cooperation with the bureaucracy and the population. Flourishing and decline of a state were to be lead back to the system, and not to the single person of the ruler. Similarly Daoist is Shen Dao's important observation that the law has to be adapted to circumstances. It is by no means everlasting but, like all things on earth, constantly changing to meet the needs of the day.

Han Fei and the Legalist State

Han Fei, a politician in the state of Qin, merged the three concepts of law, skill and authority to a kind of summa legista (Ralf Moritz). The state, so strengthened in the central government, and by its immense military machine that was fed by recruits from the peasantry, would be able to conquer all other states and to "unify all under Heaven" (bing tianxia 并天下). Han Fei also adapted Daoist thought in his interpretation of the ruler and his politics of non-activity. He wrote the oldest commentaries to the Daoist book Daodejing in the chapters Jielao 解老 and Yulao 喻老 that are part of the book Hanfeizi 韓非子. He explained that the "Way" (dao 道) is the natural principle behind all things on earth and a kind of objective standard that not only objects follow, but also society and a state. Legal standards ("laws", fa) are in accordance with the natural law, yet they have to be probed in if they are sufficiently effective.
Han Fei recommended to make the people's mind dull (ruo min 弱民 "weaken the people") by issuing intimitading laws and regulations, to reward whistle-blowers (gao jian 告奸) in order to create mutual distrust among the population, to allow vertical social mobility so that an atmosphere of competency is generated, and, finally, not to allow that a circle of intellectuals discuss political matters, in other words, prohibiting the emergence of an intelligentsia that might challenge the government. Han Fei therefore required that all books except legal texts were prohibited from circulation, especially historiographical texts and those of other philosophical schools (mainly Confucians and Mohists) that provided alternatives to the legalist state.
Legalist thought contributed to a through change in the structure of the Chinese states during the Warring States period. From a feudal system, in which a class of nobles shared power with the central governments, the political system changed toward highly centralized bureaucracies in which the various lords ruled with a the help of a bureaucratic apparatus. Simulaneously, the rules, standards and laws that were promulgated to operate this bureaucratic machine evolved as the most important type of law in China, in the shape of administrative law and of penal law. Throughout history civil law was utterly neglected by lawmakers, and civil cases had to be solved according to the principle of analogy and based on precedent cases. The influence of the legalists on the structure of the state resulted in the unification of the empire by the king of Qin in 221 BCE. After a short period of relaxation at the beginning of the Han period, legalist concepts of government were combined with Confucian expertise in ritual and educational matters. This combination provided the background for the structure of the Chinese empire until its demise in 1911. The incorporation of legalism into the state structure under Emperor Wu of the Han dynasty was rather a practical matter than an ideological matter. While Confucianism prevailed in rhetoric, legalism provided the ideas for the practical organisation of administration, from household registers to military recruitment and corvée labour, yet also in the attempt to strengthen the position of the emperor and to punish disobedient officials. Points of contact are not only to be found between legalism and Daoism, but also between the former and Confucianism, especially in the idea that the whole state is based on the outcome of agricultural production, and that the peasantry therefore has to be regarded as the fundament of society, and to be treated well. In that respect, the First Emperor and his successor had been less successful legalists by their ruthless exploitation of the peasants for the military machine and the erection of the Great Wall and representative buildings in and around the capital. Another example of a one-sided implementation of legalism was the founder of the Ming dynasty, Zhu Yuanzhang, who did not only issue a series of codices to control members of the dynasty but also seriously mistrusted all state officials and regularly undertook purges. In contrast to this kind of "exploitative legalism", the "benevolent legalism" of Emperor Wu of the Han and, for instance, of the Yongzheng Emperor of the Qing dynasty proved much more effective and in fact contributed to the creation of strong states with an effectfully organised bureaucracy.


Sources:
Pan Fu'en 潘富恩 (1992). "Fajia 法家", in: Zhongguo da baike quanshu 中國大百科全書, Zhexue 哲學, vol. 1, p. 190. Beijing/Shanghai: Zhongguo da baike quanshu chubanshe.
Xie Qingkui 謝慶奎 (1992). "Fajia 法家", in: Zhongguo da baike quanshu 中國大百科全書, Zhengzhixue 政治學, p. 80. Beijing/Shanghai: Zhongguo da baike quanshu chubanshe.
July 27, 2010 © Ulrich Theobald · Mail