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Legalism (Chinese philosophy)

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Legalism
Statue of the legalist Shang Yang
Chinese法家
Literal meaningSchool of law
Transcriptions
Standard Mandarin
Hanyu PinyinFǎjiā
Bopomofoㄈㄚˇ ㄐㄧㄚ
Wade–GilesFa3-chia1
Tongyong PinyinFǎ-jia
IPA[fà.tɕjá]
Yue: Cantonese
Yale RomanizationFaatgā
Jyutpingfaat3 gaa1
IPA[fat̚˧ ka˥]
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Fajia (Chinese: 法家; pinyin: fǎjiā), or the School of fa (laws, methods), often translated as Legalism,[1] is a school of mainly Warring States period classical Chinese philosophy. Often characterized in the West along realist lines,[2] its ideas contributed greatly to the formation of the early bureaucratic Chinese empire, and early elements of Daoism. 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,[3] with the late Han Feizi drawing on both. As written by Sima Qian, later centuries associated Xun Kuang as a teacher of Han Fei and Li Si.[4] The Qin to Tang were more characterized by its traditions.

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. Although briefly discussed by Xun Kuang, it otherwise contains the earliest commentaries on the Daodejing. Sun Tzu's Art of War recommends Han Fei's concepts of power, technique, inaction, and impartiality, with 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.

Retrospective current

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A late 19th century edition of the Hanfeizi by Hongwen Book Company

With the Qin state early a remote backwater to the west, although Shang Yang propelled the Qin to power, central China likely did not know him until at least the eve of imperial unification. Knowing of Shen Buhai, Shen Dao, and the Qin, even the late Xun Kuang would not seem to know Shang Yang, despite traditional comparisons. With the two not evidentially connected in their own times, Shen Buhai can be compared with the slightly older Li Kui, or the even older Confucian Zichan at the broad level that they all mutually sought more meritocratic government, but only speculatively and with evidence of direct influence lacking.

As chancellors of neighboring states, the doctrines of Shang Yang and Shen Buhai would have encountered one another by the Qin dynasty, and the late Han Feizi, associated with the purported Han Fei of Shen Buhai's Hann state, is Shang Yang's first reference outside the Qin state's own Book of Lord Shang. The Han Feizi would suggest that the laws and methods of Shang Yang and Guan Zhong, with their associated works, may have circulated at that time.[5][6][7] Chapter 24 of the Book of Lord Shang demonstrates familiarity with concepts associated with Shen Buhai and Shen Dao, but had become common by that time.[8]

Chapter 43 Ding fa

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With the Han Feizi as Shang Yang's first reference, it is only possible to trace the origins of their association within the Fa school to the first direct connection between him and Shen Buhai, in chapter 43 of the Han Feizi.[9] Set against a backdrop of the late Hann state under the threat of Qin, taking Shang Yang as representative, Han Fei considered fa (standards) necessary, as including law, decrees, reward and punishment, as well as standards (fa) in the administration, representative of his own state's Shen Buhai. The latter he terms (shu) administrative Method or Technique.[10] The Chapter contains one of Shu's "most succinct definitions".[11]

Shen Buhai talked of Method while Gongsun Yang made laws. Method is to confer office in accordance with a candidate’s capabilities; to hold achievement account able to claim; and to examine the ability of the assembled ministers. This is controlled by the ruler.“

Potentially influential for the founding of the Imperial Examination,[12] according to Han Fei and the Huainanzi, Shen Buhai had disorganized law in the time of the newly formed Hann state. No Han or earlier text individually connects him with penal law, but only with control of bureaucracy,[13] and in contrast to Shang Yang or Han Fei appears to have opposed penal punishment.[14] Shen Buhai's administrative ideas would be relevant for penal records and practice by the Han dynasty, but can still be seen in a fifth century work quoting Liu Xiang as a figure who advocated administrative technique, supervision, and accountability to abolish the punishment of ministers, and likely did contribute to a reduction in punishment. Although some prominent reformers did use them together, the three still had their own individual influences even into the Han dynasty.[15]

Imperial Confucian category

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Book of Han or Hanshu, carved in the Ming dynasty, in Tian Yi Chamber Library collection
See also: Discourses on Salt and Iron

Similar to the idea of fa, from the time of the Han Feizi's synthesis onward, Shang Yang, Shen Buhai and Han Fei were often identified under Han Fei's administrative practice of Xing-Ming ("form and name"), inherited from Shen Buhai. It would serve a secondary moniker.[16][17] As a category likely invented by Sima Tan (165–110 BCE) in a discourse on government, their several prominent are under the School of fa (fajia)[18] because Imperial Archivists Liu Xiang (77–6BCE) and Liu Xin (c.46bce–23ce) used it as a category in the Han dynasty imperial library. Fajia would become a major category of Masters Texts in Han dynasty catalogues, namely the Han state's own Book of Han (111ce). It included six other lost texts.[19]

Although Xun Kuang criticized Shen Dao as "obsessed with fa", Fajia, which can simply mean fa family, likely only meant "law abiding families" in the time of Mencius; no one had used it as an ideological term for himself or his opponent. With Expert another meaning of Jia, its rare term might have evolved to mean something like "methods expert in economic affairs" in the context of the Guanzi before Tan's variant before popular. As used in the Shiji (Sima Tan), Fajia would appear purely ideological, referring to "the view that kinship and social status should be disregarded by administrative protocols", treating everyone equally and "thereby elevating the sovereign over the rest of humanity."

Although a broad earlier economical meaning for the term itself would be more suppositional, Sima Qian highlights the Book of Lord Shang's Chapter 3 on Agriculture and War, while Liu Xiang would go on to suggest that Shang Yang and Li Kui had been influenced by the agriculturally focused Shennong. A primary concern of the early Book of Lord Shang, Sinologist Yuri Pines Stanford Encyclopedia still considers the inclusion of a goal of "rich states and powerful armies" a more accurate descriptor for the current than just fa laws and methods.[20]

Military mobilization

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With the Book of Lord Shang emphasizing fa standards as law, and with a predominantly penal legal reception by Han Fei and the Han dynasty, in response to a Legal positivist interpretation by Joseph Needham, the early work of Sinologist Herrlee G. Creel accepted Shang Yang as the Fajia's Legalist branch, arguing Shen Buhai it's administrative. But Shang Yang's program was broader than law; Han Fei elementalizes him under it.[21] Penal law aside, Benjamin I. Schwartz argued Shang Yang's primary program to be agriculture and war. Per Michael Loewe early ministerial recruitment occurred amidst Warring States period mobilization. Developing towards such offices as diplomats, early mobilization and recruitment was generally more focused simply on census and taxes, with the Book of Lord Shang's programs a more extreme primary example of the trend; with Han Fei quite later, essentially, the only remaining early work of it's kind.[22]

With penal law as one component, the actual perspective expressed by the Book of Lord Shang would seem more that of seeking a rich, total state, with a dominating focus on agriculture and powerful army, all geared for conquest. Acknowledging their bureaucratic contributions, Pine's work in the Stanford Encyclopedia of Philosophy prefaces a Shang Yang-Han Fei more along these lines. 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 he was as much a military reformer in his own time, even if not as renowned a general, and the Han also recognized him as a military strategist. A work under his name, possibly the same sans a few chapters, is also categorized under the Han Imperial Library's Military Books, subjection Strategists.[23]

With Shang Yang said to have reformed Qin law, the Book of Lord Shang does not believe that fa laws will be successful without "investigating the people's disposition." Pines takes Shang Yang's primary doctrine to be that of connecting people's inborn nature or dispositions (xing 性) with names (ming 名). The work recommends enacting laws that allow people to "pursue the desire for a name", namely fame and high social status, or just wealth if acceptable. Ensuring that these "names" are connected with actual benefits, it was hoped that if people are able to pursue these, they will be less likely to commit crimes, and more likely to engage in hard work or fight in wars.[24]

A figure in the Stratagems of the Warring States, although not the primary focus of his administrative treatise, Shen Buhai was also a military reformer, at least for defense, and is said to have maintained the security of his state.[25] Although Xun Kuang is probably accurate in considering Shen Dao to be focused on fa administrative standards,[26] as introduced by Feng Youlan he would most remembered in early scholarship 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. He only uses the term twice in his fragments.[27][28][29]

Sima Qian

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Sima Qian's Records of the Grand Historian or Shiji, 1982 printed edition by the Zhonghua Book Company.

Prior Sima Tan, doctrines were identified only by masters in connection with textual traditions.[30] Not forming large scale, organized, continuous schools in the sense of the Mohists and Confucians, those later termed Daoists formed loose networks of master and disciple in the Warring States period.[31] Coming to mean something like Daoism, Daojia is only coined and narrowed down to the basic examples of Laozi and Zhuangzi in the Han dynasty. As described by A.C. Graham, the Zhuangzi prefers a private life, while the Daodejing (Laozi) contains an art of rule. Xun Kuang does not perceive them as belonging to one school in his time, and lists them separately. Along with Shen Dao, it is adopted into the same history of thought in the later, Outer Zhuangzi.[32][33]

Although those the Confucians listed under the fa-school arguably were focused on fa standards and methods,[34] it is not to the extent that would be suggested by an exclusive category. While some may have been earlier than the Daodejing, it would almost go without saying that the Han Feizi would be influenced by it, as many Confucians would, and is also focused on Daoistic concepts wu wei and Dao. Quoting from Shen Buhai alongside the Laozi in Chapter 5, the work is addended with Daodejing commentaries. Those who included them likely "did not see the two distinct schools" that the Confucians later saw. They probably saw works of rule;[35][36] Sima Qian and Ban Gu describe Huang-Lao in these terms.[37]

Placing the biographies of Shen Buhai and Han Fei alongside Laozi and Zhuangzi, along with founding Han figures, Sima Qian earlier claimed Han Fei, Shen Buhai and Shen Dao as students of his same Huang-Lao philosophy, or "Yellow Emperor and Laozi Daoism".[38] Shang Yang is simply given his own chapter,[39] while Shen Dao is listed under the Jixia Academy.[40] Incorporating Xing-ming administrative philosophy from Shen Buhai/Han Fei, Sima Tan appears to have described Daojia more with content termed "Huang-Lao" in mind than Laozi-Zhuangzi.[41][42] But, Sima Qian's chapter concludes:

The Way of Laozi esteemed emptiness, reacting to changes through non-action. Profound and subtle, his words are difficult to comprehend. Zhuangzi was unfettered by the Way and virtue, setting loose his discussions; yet his essentials go back to spontaneity. Master Shen (Buhai) treated the lowly as lowly, applying the principle of “names and substance.” Master Han (Fei) drew on ink line, penetrated the nature of matters, and was clear about right and wrong, but was extremely cruel and had little compassion. All these originated in the Way and its virtue (power, de), but Laozi was the most profound of them. Shiji 63: 2156[43]

Dividing Shang Yang from the others categorically, Sima Qian probably intends that they not be combined.[39] The Daodejing (Laozi), Zhuangzi and Sima Qian generally hold a negative view of fa laws, not much favoring "state activism in general". Sima Qian would seem to favor limitation of the bureaucracy,[44][43] but argues from a standpoint that needs have changed with the times.[45] One chapter of the Han Feizi criticizes "the doctrine of calmness and stillness", another "abstruse and subtle language".[46] Despite appropriative usages, the Daoistic early Han Huainanzi does not endorse Shen Buhai, glossing him as penal alongside Shang Yang and Han Fei.[47] Nonetheless, before the later Han the figures were not yet divided into two different schools.[48]

With a royal practice of wu wei reduced activity prominent in the early Han,[49] a key to Sima Qian's narrative would seem to be an identification of Han Fei with what he termed "Huang-Lao".[50] Sima Qian blames Li Si as purportedly combining Shen Buhai and Han Fei's doctrine, identified as Technique, with Shang Yang's doctrine of law, depicting Li Si as inflicting heavy taxes and abusing Shen Buha's doctrine to encourage the indolence and subservience of the Second Emperor. Although earlier Sinologists might treat them as belonging to the same "Legalism" category, Sima Qian, for his part, does not treat Han Fei the same as Li Si; framing the two as opponents, Han Fei is treated as a 'tragic figure'.[51] Han texts Shiji, Gongyang Zhuan, Yan tie lun, and Huainanzi instead depict Confucius as a Legalist, probably partly alluding to a cruel official under the Emperor Wu of Han.[52]

Huang-Lao and Mawangdui

[edit]

Even by the Records own timeline, a purported Huang-Lao might have emerged in the academies some decades after Shen Buhai's death, with either likely preceding a consolidated Daodejing (Laozi) or Zhuangzi. Discussing an administrative Way of government, Creel took him as lacking in later Daoistic metaphysical conceptions of the Daoist Dao. But, he is still Daoistic to the naked eye, so that a modern Chinese scholar could still take Shen Buhai and Shen Dao as turning towards a Daoistic syncretism. Some western Sinologist use the term Naturalism for the two, with Daoism not very definable for the early period; but Han Fei's naturalism is very brief.[53] Generally they are distinguished as politically focused; with the Han Feizi "promoting the ruler’s quiescence", Han Fei's Chapter 5 concerns the Way of the Ruler more than a Daoist way of life.[54]

The term "Huang-Lao" might be retrospective, and the Han Feizi's Daodejing commentaries chapters may be late additions. But the latter would seem to accurately describe the syncretism that became dominant by the Qin dynasty. As a view still espoused by Sinologist Hansen of the Stanford Encyclopedia of Daoism, a "Legalism", as including the Guanzi's current, and a Huang-Lao "Yellow Emperor Daoism" dominant by the Qin to early Han would theoretically be borne out by the Mawangdui silk texts.[55] But if Huang-Lao did describe a self-conscious current, it would have been more of a tendency than a unified doctrine, with early "Huang-Lao" Han dynasty administrators named by Sima Qian, like Cao Shen, taking a more "hands off" approach after the fall of the Qin dynasty.[56]

The Mawagndui texts can be argued to have been written in the early Han, when their political positions would have been more appealing, but Michael Loewe still placed its Jingfa text before Qin unification, and most scholars still took the others as having been at least Pre-han. The Yellow Emperor is a major figure in one of its texts. Amongst other strains of thought, the more metaphysical, but still politically oriented Boshu text more broadly includes contents bearing resemblance to Shen Buhai, Shen Dao and Han Fei, developing arguments more comparable to natural law than an old interpretation of legal positivism for Shang Yang and Han Fei.[57]

Huang-Lao and Laozi

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More political than a typical reading of the Daodejing (Laozi), rather than "using" the work for politics, 'Han Fei' may be reading from an older, more political version. With the Mawangdui found from a member of the political class, Hansen argued these version should not be simply assumed as 'originals', interpreting Huang-Lao as an early, politically partisan variety of what would later, if not entirely accurately be termed Daoism.[58] If the authors of the Han Feizi were not all sincere in their Laoist beliefs, the work would still have served as a suitable critique of Confucianism and Mohism, i.e. for a more "realist" anti-Confucian than Daoist interpretation of the Han Feizi,[59] or for impartial laws and technique as purportedly bolstering the authority of a wu wei semi-inactive ruler.[60]

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. In contrast to it's modern representation, 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. The Han Feizi's political contemporaries likely read them in the same order. Arguably lacking in metaphysics, associated content instead possesses mythologies. Nonetheless, in contrast to all prior Ways, the Daodejing emphasizes quietude and lack as wu wei. A central concept of Daoism, 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.[61]

The Han Feizi's late Daodejing commentaries are comparable with the Daoism of the Guanzi Neiye,[62] but otherwise utilizes the Laozi more as a theme for methods of rule. Although the Han Feizi has Daoistic conceptions of objective viewpoints ("mystical states"), if his sources had them, he lacks a conclusive belief in universal moralities or natural laws,[63] sharing with Shang Yang and Shen Dao a view of man as self-interested.[64] 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 the Han Feizi's Xing-ming administrative method.[65] Its current is opposed with later, or otherwise more spiritual forms of 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.[66]

Shen Dao and Zhuangzi

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Early "Daoists" were likely not aware of their whole field.[67] For the Han Feizi too, Zhuangzi influences only exists as traces,[68] and the Mawangdui silk texts still lacked Zhuangzi influences. The main evidence of Zhuangzi influence in the Han dynasty is the Huainanzi.[69][32] Professor Tao Jiang more simply refers to Han Fei's Laozi influences as Laoist, only theorizing "Zhuangist"-type influences. He theorizes these 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.[70]

However, Benjamin I. Schwartz describes Shen Dao in terms of equanimity and a spirit of wu wei held in common with Zhuang Zhou and his own fellow academicians, with early Daoistic ideas found among later eclectics like Han Fei and Xun Kuang.[71] A representative figure of Han Fei's Chapter 40 on Shi 'situational authority' or Power, and likely a well known philosopher in his time from the Jixia Academy,[72] the Mohists and Shen Dao are placed by the Outer Zhuangzi as peceding Zhuang Zhou and Laozi.[73] Although likely not entirely accurate chronologically, Shen Dao does arguably bare resemblance to the earlier, Inner Zhuangzi. Early taking him as the Beginning of Daoist Theory, or Mature Daoism, Hansen still discusses him as part of the Stanford Encyclopedia of Daoism's theoretical model, under "Pre-Laozi Daoist Theory".[74][75]

Though espousing Laozi, Hansen theorized Han Fei's conception of the Dao to be based on that of Shen Dao's situational authority, with the Guanzi as similarly relevant. Shendao develops "the concept of the natural dao", or "actual course of events." "Abandoning knowledge" or conventional guidance, whatever the situation brings is the Dao (way), guiding human affairs, conventions, prescriptions and knowledge. Han Fei and Shen Dao's Dao might guide might good or evil kings, but emphasizing institutionalism (fa), the Han Feizi does not endorse the evil king, whose governance may be more complicated.[76] If some authors of the Han Feizi were familiar with the proto-Guanzi, as its references would at least suggest, the Guanzi holds that fa models control affairs, models find their origins in the exercise of power, and the exercise of power finds its origins in Dao.[77]

Changing with the times

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

The early work of 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.[78] Earlier thought to be rare, in fact, a changing with times paradigm, or one of timeliness, "dominated" the age. Pines takes Shang Yang and Han Fei's more specific view of history as an evolutionary process as contrasting, and might have influenced an end of history view expressed by the Qin dynasty.[79]

However, Sinologist Hansen also once took the Dao of Shen Dao and Han Fei as aiming at what they took to be the '"actual" course of history'.[80] Stressing timeliness, Sima Tan says: "It (the dao or way) shifts with the times and changes in response to things", a view earlier found in Han Fei and Xun Kuang. Hong Kong professor Xiaogan Liu takes the Zhuangzi and Laozi (Tao te Ching) as more focused on "according with nature" than timeliness; followers of "Huang-Lao" can be theorized as defining the former according to the latter.[45]

Taking Shang Yang as inheriting from Li Kui and Wu Qi, despite anti-Confucianism in the Shangjunshu, professor Ch'ien Mu still considered that that "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.[81]

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:[82]

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.[83]

A.C. Graham

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In what A.C. Graham took to be a "highly literary fiction", as Pines recalls, the Book of Lord Shang's chapter 1, “Revising the laws,” 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.[84][2]

As a counterpoint, the Han Feizi and Shen Dao do still employ argumentative reference to 'sage kings'; the Han Feizi 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, considering the demarcation between public and private a "key element" in the "enlightened governance" of the purported former kings.[85]

Confucian influences

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As a figure who paraphrases the Analects, and showing "both Daoist and Confucian characteristics", Shen Buhai can still modernly be argued a more Confucian figure than might be expected from Sima Qian's Huang-lao characterization, or a more cooperative figure than might be expected from the scheming of the Han Feizi's later chapters, and does not appear to directly attack Confucianism. Teaching the ruler not to engage in actions that might harm the 'natural order of things', he uses Wu wei in a Confucian sense of leaving duties to ministers. Discarding the use of his ears, eyes and wisdom, and hiding his power and wit, in contrast to Daoism as later understood, Creel's seminal work argued his Dao or Way as referring only to the use of impartial administrative methods (fa).[86][87] But Sinologist Goldin still modernly characterized him as naturalistic.[88]

Some authors of the Han Feizi took a negative view of Confucianism,[89] and has little interest in them as scholars or philosophers. However, as compared with Shang Yang's total state of penal law, agriculture and war, the Han Feizi arguably still has a more Confucian orientation in it's focus on forbidding and encouraging ministers, even if it incorporates reward and punishment. Han Fei has a bureaucratic system of names (roles) than can be compared with the Confucian rectification of names.[90] The Han Feizi criticizes Shang Yang in much the same way that the Confucians critique law. Holding that laws cannot practice themselves, it blames him for too much reliance on law, substituting the Confucian argument for virtuous worthies with method; "Although the laws were rigorously implemented by the officials, the ruler at the apex lacked methods."[91]

Much of the early Book of Lord Shang is more focused on the state power in relation to the general populace, only really focusing more on controlling ministers in later chapters, likely of later date.[92]

Shen Dao

[edit]

Although Han Fei would generally be considered authoritarian, figures like Shen Dao necessarily more authoritarian for their time.[93] Advocating that administrative machinery (fa) be used to impartially determine rewards and punishments,[94][95] Shen Dao otherwise advocates that the realm be literally modeled off the natural world.[96]

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 that he does not necessarily decide on one model 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.[97] Rather than law itself, Xun Kuang opposes litigation and paradoxes, as found in the school of names.[98]

Mencius advocates that Emperor Shun would run away with his father if he had committed murder, rather than see him arrested. Not considering Confucian values like 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. While the Zhuangzi is generally critical of filial piety, Shen Dao still upheld it even if the parents are bad, instead suggesting that parents can be reproached if it might save them from disaster.[99]

Xing-Ming and Wu wei

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See also: Huangdi sijing

Likely originating in the debates of the Neo-Mohists and school of names,[100][101] although Liu Xiang (77–6BCE) places Shen Buhai under the Fajia category, he and Sima Qian (145–86 BC) considered his doctrine to be that of Xing-Ming, or "form" and "name", with Sima Qian claiming him as based in Huang-Lao Daoism. Described as holding outcomes accountable to claims,[102] Sima Qian glosses Shen Buhai, Shang Yang and Han Fei under it;[2] early connected with the school of names and Shen Buhai as Method, the term sometimes refers to a combination of Shang Yang and Han Fei by the Han. Despite its administrative contributions, the meaning of the term itself is ultimately confused and lost in conflation with punishment (Xing 刑) by the time of the Western Qin, sometimes as early as the third century's Eastern Han.[103]

An early bureaucratic pioneer, Shen Buhai was not so much more advanced as he was more focused on bureaucracy. Han Fei's discussion of Method-Technique (fa-Shu) in connection with him provides a basic explanation for Xing-Ming, 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." With Shen Buhai more conservatively surveying the ministers, implementing it's parts individually, their direct connection as a unified administrative function cannot be seen before Han Fei. Naming individuals to their roles as ministers (e.g. "Steward of Cloaks"), in contrast to the earlier Confucians, Han Fei at the end of the period holds ministers accountable for their proposals, actions and performance.[104] The late Warring States theories of Xun Kuang or the Mohists were still far more generalized.[105]

Sima Qian asserts the First Emperor as proclaiming its practice.[106] With Shen Buhai (and Han Fei still) extent in the early Han, evidentially, aspects of its basic idea intersect with Qin by the time late pre-imperial Lushi Chunqiu, from around 240 b.c., containing a "Daoist-Legalist" fusion comparable to Shen Buhai, Shen Dao, Han Fei, Guanzi and the Mawangdui Huangdi sijing. Typically termed "Daoist" for the early Han, the work demonstrates that a philosophy promoting the wu wei reduced activity of the ruler goes back to the Warring States period. The later Han historians simply classify the text as Zajia ("Syncretist") rather than Daojia or Fajia. With an example from the chapter "Ren shu":[107]

To follow is the method of the ruler; to act is the way of the minister. If (the ruler) acts, he will be troubled, if he follows, he will find peace. To follow the winter when it produces cold and the summer when it produces heat, why should the ruler do anything? Therefore to say: "The way of the ruler is to have no knowledge and no action, but still he is more worthy than those who know and act," that is to get the point.

With visible usages of Xing-Ming, the Han Feizi's chapter 5 Zhudao (道主) or "Way of the Ruler" incorporates Laozi and Shen Buhai in parallel style. Although Sima Qian does not claim it amongst his short list of chapters, he may have taken Han Fei as Huang-Lao based on its conception of the Dao, if the idea wasn't already established.[108]

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

The Mawangdui Jingfa regards Dao as generating fa standards,[109] and Sima Tan partly described the Daoist school based on what is "clearly" the idea of the Xing-Ming court. Shen Buhai, Han Fei, and Sima Qian's preferably 'inactive' ruler contracts an assembly of ministers, with Xing-Ming correlating job proposals (Ming "names", or verbal claims) with the Xing "forms" or "shapes" that they take. With early examples in Shen Buhai (Shenzi), several of the Mawangdui's texts bare resemblance to Han Fei's Chapter 5 discussion of Xing-Ming and its "brilliant (or intelligent) ruler", as do other eclectic Huang-Lao typified works, like the Guanzi, Huainanzi, and Sima Qian's Shiji.[110]

A.C. Graham took the Outer Zhuangzi as incorporating Xing-Ming, emphasizing benevolence over rewards and punishments,[111] although by its own statements the work favours self cultivation.[112] With their doctrines scarcely visible in the early Han outside the Mawangdui silk texts, according to the Shiji, the practice of Xing-Ming emerged again under the Daoistic Emperor Wen of Han and his trusted ministers, but "cautious, unobtrusive and firm", more akin to Shen Buhai than Han Fei. Attributed back to Shen Buhai, it becomes the term for secretaries who had charge of records in penal decisions by the Han dynasty, holding outcomes accountable to claims.[113][114]

Han Feizi

[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. Han Fei and the earlier Mohists had conceptions of law, but make broader usages of fa standards.[115][116] Han Fei and Shen Dao make some use of fa (standards) as akin to law, and some use of reward and punishment, often using fa standards similarly to Shen Buhai: as an administrative technique. 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:[94]

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, the Qin would abandon his harsh punishments, and ultimately his dominating focus on agriculture. The Shangjunshu's current otherwise attempts to innovate broader means of "empowering the state", including standards (fa) for promotion. The Book of Lord Shang represents some of its current's reforms, otherwise containing pre-imperial ideas about what an order based on law and bureaucracy might look like once established. Inheriting its current at the end Warring States period, the Han Feizi aspires to a state with law, wealth and a powerful military. That the Han Feizi is not legislative suggests that component was still more theoretical and advocative.[117]

With one core originating in Shen Buhai, Han Fei's chapter 5 on Xing-Ming administration does include specific practical recommendations, such that the Waseda University edition divides it in half.[118] Xing-Ming is amongst, if not the work's most philosophically sophisticated arguments.[119] Although, as originating in Shen Buhai, not a required component, Xing-Ming can also be considered its most detailed application of reward and punishment in connection with Chapter 7's The Two Handles.[120] But if the Chapter 5 is not late, Chapter 6's memorial on Having Regulations recalls the fall of Wey in 243bce; Chapter 19's Taking Measures may have been written after the fall Zhao (228bce) and Wei (225bce). It is written from the perspective of the Hann state that the work claims needs more law rather than already having it.[121]

The work'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, 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.[122]

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.[123] 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.[124]

Daodejing 17

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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.[125] 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.[126] 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.[127]

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.[128] 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.[129] 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.[130] 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."[131]

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)[132]

School of names

[edit]

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.[133] 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.[134]

But words and names are essential to administration,[135] 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.[136]

Although more or less representing an actual social category of debaters,[137] 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").[138] Engaging in discussions of "sameness and difference", such distinctions would naturally be useful in litigation and administration.[139] But the more advanced Names and Realities discussions date to the later Warring States period, after Shang Yang, Shen Buhai, and Mencius, i.e. in Han Fei's era.[140]

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,[141] using fa comparative models for litigation.[139] 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";[142] the Han dynasty term Mingjia is applied to them.[138]

The Qin dynasty used comparative model manuals to guide penal legal procedure,[143] 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.[144] Penal law develops more in the Han dynasty that coins the terms.[145]

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.[146]

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 mistakenly be imposed backward. Pine's work in the Stanford Encyclopedia passingly 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:[147][2]

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 his heavy punishments.[2] 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,[148] abolishing mutilations in 167 BC.[149][150]

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.[151] Replacing mutilation, labor from one to five years becomes the common heavy punishment in early Imperial China, generally in building roads and canals.[152] Aiming to reduce punishment to a minimum, the idea of redemption can otherwise be found in the Analects of Confucius, attempting to ensure a correct application of the rectification of names.[153]

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.[154]

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.[155] 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.[156]

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.[157]

Justice

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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.[2] 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.[158][2]

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.[159] 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.[160][161]

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":[162]

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.[163]

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.[164] 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. Although Chapter 1 is based most strongly on Laozi, the work otherwise most strongly resonates with the Zhuangzi, with influences from the Hanfeizi, Lüshi chunqiu, Mozi, and Guanzi, the Classic of Poetry, etc.[165]

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

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.[166]

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 Wu was 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.[167]

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.[168]

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 in Dong's essay, then, failed to punish criminals. Fajia becomes a category of texts in the Han state's own Book of Han (111ce), with Dong's argument included in his Chapter 56 Biography.[169]

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.[170] Shiji 120:3291

References

[edit]
  1. ^ Pines 2023; Goldin 2011; Creel 1970, p. 93,119–120; Leung 2019, p. 103; Hansen 1992, p. 13,345-347.
  2. ^ a b c d e f g Pines 2023.
  3. ^ Goldin 2005, p. 95; Harris 2016, pp. 65–67.
  4. ^ Goldin 2018.
  5. ^ Shaughnessy 2023, p. 203; Pines 2022, p. 351.
  6. ^ Creel 1974, p. 12.
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  9. ^ Pines 2017, p. 248.
  10. ^ Creel 1970, p. 81,93-95,103; Goldin 2011, p. 95-96,104,105(7-8,16-17); Graham 1989, p. 268,282-283; Hansen 1992, pp. 364, 347, 350; Pines 2024, p. 58-59,61.
  11. ^ Makeham 1994, pp. 68, 70; Goldin 2011, p. 98(10).
  12. ^ Creel 1970, pp. 95, 117; Graham 1989, p. 283.
  13. ^ Creel 1970, p. 101; Winston 2005, p. 59.
  14. ^ Goldin 2005, pp. 95, 200; Creel 1970, p. 92-93,101; Jiang 2021, p. 239.
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  37. ^ Xiaogan 2014, p. 267,249.
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  45. ^ a b Xiaogan 1994, p. xvi.
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  50. ^ Goldin 2012, p. 165.
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  57. ^ Peerenboom 1993, pp. 8, 3–4, 19, 241; Loewe 1999, p. 1007-1008; Lundahl 1992, p. 129.
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