Although
Confucianism and Taoism have been the most representative schools of thought in
China and the ones that have been spread overseas, we cannot underestimate the
importance of a third school of thought that appeared and developed in the same
historical period as Confucianism and Taoism: the legalist school, which in
Chinese is called fajia 法家.
The founders
of this school of thought were Shang Yang 商鞅 (390-338 a.C), Shen Buhai 申不害 (-- 337 BC) and Shen
Dao 慎到 (395-315 BC). Shang Yang was one of the most
important figures in Legalism because he was the first who introduced legalist
reforms in the state of Qin. Thanks to those reforms, the state of Qin achieved
to defeat the rest of states and, its king, Qin Shi Huang, was able to proclaim
himself the first emperor of the unified China in 221 BC.
Nevertheless,
the most representative and important legalist philosopher was Han Fei Zi韩非子 (280-234 BC). Han Fei Zi and Li Si 李斯 (280-208 a.C), who was the prime minister of the emperor Qin Shi Huang
Di, were disciples of the Confucian philosopher Xun Zi 荀子, from whom they learned that all men are born evil and greedy. This
aspect would enormously influence their opinion about men in relation to State
and laws.
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| Han Fei Zi 韩非子 |
Han Fei Zi
wrote a book which bears his name and where he stated his legalist ideas. In
one of the chapters of this book, Han Fei Zi wrote a textual analysis of the book of Lao Zi which is particularly
interesting from the point of view of having a better understanding of the Book
of Tao and its influences on the legalist school, especially on Han Fei Zi.
The Chinese
character fa 法, which means “law”, perfectly describes the essence
of this school of thought. For legalists, the most important of all things was
law, and all citizens of a state had to be subject to the laws except the
monarch. Despite the fact that law codes already existed in China since ancient
times, in ancient times, particularly during the first centuries of the Zhou
dynasty, the sage kings had governed by the power of rites, which was the type
of government supported by Confucius. Governing by the power of rites meant
that there were certain pre-established behaviour codes of conduct which had
their origins in the ancient Chinese tradition. These behaviour codes or codes
of conduct were like a tacit agreement between the monarch and his subjects,
each person had his role within society, his moral duties which had to carry
out in order to maintain social order, peace and harmony within society. The
most important moral duties were:
1.
The cult of
ancestors. This was the core of all Chinese tradition. All men had the moral
duty to worship their ancestors and make offerings in order to pacify their
ancestors’ souls. Thus, the living people would be helped by their ancestors.
2.
Practice
filial piety. All sons had the moral duty to obey, respect and worship their
parents, and never question them even though when parents might be wrong.
3.
Profess benevolence
ren仁 to all the people.
4. Respect
the ancient rites which defined the relationships of people from different
social classes (etiquette, behaviour codes, offerings and ceremonies, etc).
Each individual had to accept his position and his role within society and
carry it out diligently.
In this kind
of government, family and State was the same thing, and in the same way a son
obeyed and worshiped his parents (filial piety), the subjects accepted the
monarch as their ruler, they obeyed him, respected him and worshiped him as if
it was a father. The monarch, in turn, had the moral duty to be benevolent with
his subjects who were loyal to him, he had to make offerings to his royal
ancestors in order to pacify their souls so that they brought good fortune to
the kingdom (to have good crops, to avoid natural disasters and uprisings which
might make the ruler lose the Mandate of Heaven).
In this kind
of government, the law codes had a secondary importance, because the most
important was the moral duty of respecting the protocol codes which were
established between the different social strata which had an almost religious
or holy nuance.
Despite the
fact that in China punishments xing 型 had always existed for punishing bad conducts, in
this kind of government by the rites, the most important wasn’t severe
punishments, the most important was to instruct the ignorant people and
offenders and lead them to the right way by giving them example of what a right
conduct should be. According to Confucius, when the government punished their
subjects harshly (death penalty, tortures, etc) it was because something wasn’t
working properly within society and government. If the monarch wasn’t behaving
properly, his subjects wouldn’t behave properly either, and people wouldn’t
know what’s good from bad, what’s moral and what’s immoral.
However,
legalist didn’t believe in this kind of Confucian ideal government because they
thought that all men were born evil, and so to avoid social disorder, a code of
laws had to be established. Everyone in the State had the duty to know this
legal code which was published in every town and village, and was read in
public by government officials for those people who were illiterate in order to
deter them from breaking the law. This legal code had to be explicitly written
and obeyed by all the citizens of the State except the monarch. Otherwise,
punishments had to be inescapable and extremely harsh and cruel.
When the
legalist reforms were first introduced to the Qin State and afterward to all
the territory of the Qin dynasty, society and government were organized in a
way that laws had to be strictly obeyed and thus nobody could conspire against
the emperor. Among all the reforms that were carried out in the Qin state and
dynasty were the reorganization of families and the suppression of the aristocratic
privileges of noble classes who were, from then on, subject to the laws as the
rest of the common citizens. This measure was a radical change for Confucians
who had always advocated the privileges of the noble descent.
All households
were reduced in number of members, putting an end to the traditional large
Chinese family advocated by Confucians. All households were demarcated and
registered in small groups of families who were designated as a “mutual
responsibility” unit. This meant that if a person from that group of families
broke the law, the rest of the members who knew what had happened, had the duty
to report him to the authorities. Otherwise, all the members of the group would
receive the same punishment as the offender.
[…] If so,
how to get rid of delicate villainy? By making the people watch 6 one
another in their hidden affairs. Then how to make them watch one another? By
implicating the people of the same hamlet in one another's crime. When everyone
knows that the penalty or reward will directly affect him, if the people of the
same hamlet 7 fail to watch one another, they will fear
they may not be able to escape the implication, and those who are evil-minded,
will not be allowed to forget so many people watching them. Were such the law,
everybody would mind his own doings, watch everybody else, and disclose the
secrets of any culprit. For, whosoever denounces a criminal offence, is not
held guilty but is given a reward; whosoever misses any culprit, is definitely
censured and given the same penalty as the culprit. Were such the law, all
types of culprits would be detected. If the minutest villainy is not tolerated,
it is due to the system of personal denunciation and mutual implication […].
(Han Fei Zi. Chapter 55: Regulations and Distinctions)
By
means of this despotic and authoritarian system, people had to be on the alert
all the time for fear that anybody would report them to the authorities, so
they rarely dared to break the law or conspire against the State or the
monarch.
The
essence of legalism can be summarized in three key words:
The
first one is fa 法, which means “law”. All states should
have a legal code where it is explicitly written which are the crimes and which
are punishments for those crimes.
The sage in
governing the people considers their springs of action, never tolerates their
wicked desires, but seeks only for the people's benefit. Therefore, the penalty
he inflicts is not due to any hatred for the people but to his motive of loving
the people. If penalty triumphs, the people are quiet; if reward over-flows,
culprits appear. Therefore the triumph of penalty is the beginning of order;
the overflow of reward, the origin of chaos.
Indeed,
it is the people's nature to delight in disorder and detach themselves from
legal restraints. Therefore, when the intelligent sovereign governs the state,
if he makes rewards clear, the people will be encouraged to render meritorious
services; if he makes penalties severe, the people will attach themselves to
the law. If they are encouraged to render meritorious services, public affairs
will not be obstructed; if they attach themselves to the law, culprits will not
appear. Therefore, he who governs the people should nip the evil in the bud; he
who commands troops, should inculcate warfare in the people's mind. If
prohibitions can uproot causes of villainy, there will always be order; if
soldiers can imagine warfare in mind, there will always be victory. When the
sage is governing the people, he attains order first, wherefore he is strong;
he prepares for war first, wherefore he wins.
(Han Fei Zi. Chapter 55: Regulations and Distinctions)
Legalist didn’t see the law as something unchangeable
like the Confucian rites. On the contrary, laws were subject to changes
according to the circumstances of a particular moment. In this point, we can
see some influences of Taoism, particularly the Taoist concept that everything
is constantly changing and that men have to adapt to that natural changing
state of things.
Indeed, it
is the people's nature to abhor toil and enjoy ease. However, if they pursue
ease, the land will waste; if the land wastes, the state will not be in order.
If the state is not orderly, it will become chaotic. If reward and penalty take
no effect among the inferiors, government will come to a deadlock.
Therefore, he who wants to accomplish a great achievement but hesitates to apply
his full strength, cannot hope for the accomplishment of the achievement;
he who wants to settle the people's disorder but hesitates to change
their traditions, cannot hope to banish the people's disorder. Hence there is
no constant method for the government of men. The law alone leads to political
order. If laws are adjusted to the time, there is good government.
If government fits the age, there will be great accomplishment. Therefore, when
the people are naïve, if you regulate them with fame, there will be good
government; when everybody in the world is intelligent, if you
discipline them with penalties, they will obey. While time is moving on, if
laws do not shift accordingly, there will be misrule; while
abilities are diverse, if prohibitions are not changed, the state
will be dismembered. Therefore, the sage in governing the people makes
laws move with time and prohibitions change with abilities. Who can
exert his forces to land-utilization, will become rich; who can rush his
forces at enemies, will become strong. The strong man not obstructed in his way
will attain supremacy.
(Han Fei Zi. Chapter 54: Surmising the Mentality of the People: A
Psychological Analysis of Politics)
The second key word is shu 术 which literally means “technique” or “art”, and it
refers to the monarch’s skills to manipulate his ministers and counsellors in
order to achieve his secret purposes which have to assure the stability of the
State. The monarch never had to show his
feelings, his preferences or opinions. Otherwise, his ministers, knowing what
the monarch likes and dislikes, they would know how to please him, and they
could secretly conspire against him at the same time.
The lord
of men has the duty of devoting his attention to secrecy. For this reason, when
his delight is revealed, his conduct will be slighted; when his anger is
revealed, his prestige will fall to the ground. The words of the intelligent
sovereign, therefore, are blockaded in such wise that they are not communicable
outwards and are kept in such secrecy that they are unknowable. Therefore, to
find ten culprits with the wisdom of one person is an inferior way, to find one
culprit through the mutual watch of ten persons is a superior way. As the
intelligent sovereign takes both the superior and the inferior ways, no culprit
is ever missed. Members of the same group of five families, of the same
village, and of the same county, all live like close neighbours. Who
denounces anybody else's fault, is rewarded; who misses anybody else's
fault, is censured. The same is true of the superior towards the inferior and
of the inferior towards the superior. Accordingly, superior and inferior, high
and low, warn each other to obey the law, and teach each other to secure
profits. By nature everybody wants to live in fact and in reputation. So
does the ruler want both the name of being worthy and intelligent and the fact
of rewarding and punishing people. When fame and fact are equally complete, he
will certainly be known as lucky and good.
(Han Fei Zi. Chapter 48: Eight Canons)
According to legalists, monarchs only had to let their
ministers make proposals and decisions for them. If ministers didn’t know which
were the real motivations of the monarch they didn’t know if their proposals
and decisions would please the monarch or not, so they would be cautious. Thus,
according to the proposals and the results obtained, if the ministers’ actions
were good or not for the stability of the State, the monarch would choose whether
to punish them or reward them.
Who
knows ruler and minister differ in interest, will become supreme. Who regards
the difference as identity, will be intimidated. Who administers the state
affairs in common with his ministers, will be killed. Therefore, the
intelligent sovereign will scrutinize the distinctions between public and
private interests and the relative positions of benefit and harm, so that
wicked men will find no chance to act.
The
inferior ruler exerts his own ability; the average ruler exerts people's
physical strength; and the superior ruler exerts people's wisdom. For this
reason, in case of emergency he gathers the wise men, listens to each one, and
calls a conference. If he does not listen to each one, consequent results will
be contrary to antecedent words. If consequent results are contrary to
antecedent words, there will be no distinction between the stupid and the
wise. If the ruler does not call a conference, there will be hesitation and no
decision. Without decision, everything will come to a standstill. If the ruler
adopts one of the counsels himself, he will have no fear of falling into the
trap of rapacious people. Therefore, he should let everybody utter his
opinions. After opinions are settled, he should hold them
responsible for equivalent results. For this purpose, on the day
that opinions are uttered, he should make written memoranda. Thus, the
organizer of wise men verifies their words after starting the tasks; the
organizer of able men estimates their merits after seeing their works.
Success and failure leave evidence, which reward and punishment follow
respectively. If tasks are successfully accomplished, the ruler harvests their
fruits; if they fail, the ministers face criminal charges.
Compare
different words and thereby know the true one. Change the perspectives and
thereby detect the choice abode. Stick to your own view and thereby hold
your extraordinary standpoint. Unify the system of personnel
administration and thereby warn the courtiers. Dignify your words
and thereby scare distant officials. Cite the past facts and thereby check the
antecedent words. Keep detectives near by the officials and thereby know their
inner conditions. Send detectives afar and thereby know outer affairs.
Hold to your clear knowledge and thereby inquire into obscure objects. Give
ministers false encouragements and thereby extirpate their attempts to infringe
on the ruler's rights. Invert your words and thereby try out the suspects. Use
contradictory arguments and thereby find out the invisible culprits.
Establish the system of espionage and thereby rectify the
fraudulent people. Make appointments and dismissals and thereby observe
the reactions of wicked officials. Speak explicitly and thereby persuade people
to avoid faults. Humbly follow others' speeches and thereby discriminate
between earnest men and flatterers. Get information from everybody and know
things you have not yet seen. Create quarrels among adherents and partisans and
thereby disperse them. Explore the depths of one culprit and thereby warn the
mind of the many. Divulge false ideas and thereby make the inferiors think
matters over.
The lord
of men has the duty of devoting his attention to secrecy. For this reason, when
his delight is revealed, his conduct will be slighted; when his anger is
revealed, his prestige will fall to the ground. The words of the intelligent
sovereign, therefore, are blockaded in such wise that they are not communicable
outwards and are kept in such secrecy that they are unknowable. Therefore, to
find ten culprits with the wisdom of one person is an inferior way, to find one
culprit through the mutual watch of ten persons is a superior way. As the
intelligent sovereign takes both the superior and the inferior ways, no culprit
is ever missed. Members of the same group of five families, of the same
village, and of the same county, all live like close neighbours. Who
denounces anybody else's fault, is rewarded; who misses anybody else's
fault, is censured. The same is true of the superior towards the inferior and
of the inferior towards the superior. Accordingly, superior and inferior, high
and low, warn each other to obey the law, and teach each other to secure
profits. By nature everybody wants to live in fact and in reputation. So does
the ruler want both the name of being worthy and intelligent and the fact of
rewarding and punishing people. When fame and fact are equally complete, he
will certainly be known as lucky and good.
(Han Fei Zi. Chapter 48: Eight Canons)
This way of governing is clearly influenced by the
Taoist maxim of the “non action” or wuwei
无为.
Hence
the saying: "The ruler must not reveal his wants. For, if he reveals his
wants, the ministers will polish their manners accordingly. The ruler must not reveal
his views. For, if he reveals his views, the ministers will display their hues
differently." Hence another saying: "If the like and hate of the
ruler be concealed, the true hearts of the ministers will be revealed. If the
experience and wisdom of the ruler be discarded, the ministers will take
precautions." Accordingly, the ruler, wise as he is, should not bother but
let everything find its proper place; worthy as he is, should not be
self-assumed but observe closely the ministers' motivating factors of conduct;
and, courageous as he is, should not be enraged but let every minister display
his prowess. So, leave the ruler's wisdom, then you will find the ministers'
intelligence; leave the ruler's worthiness, then you will find the ministers'
merits; and leave the ruler's courage, then you will find the ministers'
strength. In such cases, ministers will attend to their duties, magistrates
will have definite work routine, and everybody will be employed according to
his special ability. Such a course of government is called "constant and
immutable".
Hence
the saying: "So quiet, it rests without footing; so vacant, it cannot be
located." Thus, the intelligent ruler does nothing, but his ministers
tremble all the more. It is the Tao of the intelligent ruler that he makes the
wise men exhaust their mental energy and makes his decisions thereby without
being himself at his wits' end; that he makes the worthy men exert their
talents and appoints them to office accordingly without being himself at the
end of his ability; and that in case of merits the ruler gains the renown and
in case of demerit the ministers face the blame so that the ruler is never at
the end of his reputation. Therefore, the ruler, even though not worthy,
becomes the master of the worthies; and, even though not wise, becomes the
corrector of the wise men. It is the ministers who do the toil; it is the ruler
who gets the spoil. This is the everlasting principle of the worthy sovereign.
(Han Fei Zi. Chapter 5: The Tao of the Sovereign)
Finally, the word shi 势, which it means “power” or “authority”,
is referring to the authority of the monarch. If a monarch wanted to maintain
his power and authority he never had to delegate powers to his ministers. The
monarch had to keep all his authority for himself and it was only him who had
to be in charge of deciding who had to be rewarded and who had to be punished. Otherwise,
his subjects wouldn’t respect him, his authority could be questioned and, finally,
his ministers would end up seizing the power of the State.
If
dismissal and appointment have no constant rule, the sovereign's prerogative
will be profaned; if matters of reward and punishment are administered in
common by the sovereign and the inferiors, the sovereign's authority will be
shaken. For this reason, the intelligent sovereign does not listen with the
attitude of love nor does he scheme with the sense of delight. For, if he does
not compare the words he heeds, his prerogative will be shaken by rapacious
ministers; if he does not make use of the ministers' wisdom and strength, he
will be harassed by the ministers. Therefore, the sovereign, when enforcing
regulations, is as magnificent as heaven, and, when using men, is as mysterious
as the spirit. For heaven cannot be confuted and the spirit cannot be harassed
by human beings. When the position functions and the training is strict, though
the ruler acts contrary to the world, nobody dares to disobey. Once blame and
praise prevail under a unified system, nobody dares to dispute. Therefore, to
reward the wise and punish the violent is the best way to exalt good people; to
reward the outrageous and punish the wise is the extremity to exalt bad people,
which is said to be rewarding participants in wickedness and punishing
opponents to it.
Now,
rewards should not be otherwise than liberal, so that the people will consider
them profitable; honours should not be otherwise than attractive, so that the
people will consider them glorious; censures should not be otherwise than
strict, so that the people will consider them severe; and blame should not be
otherwise than odious, so that the people will consider it disgraceful.
Thereafter, the ruler will universally enforce his laws. When prohibitions and
censures of private families mean no harm to the people, and when men of merit
deserving reward and culprits deserving punishment are always known, the system
of intelligent service is accomplished.
(Han Fei Zi. Chapter 48: Eight Canons)
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