Legalism (Chinese philosophy)

The difference between the Han Feizi and the Book of Lord Shang is "striking".(Creel) Its method for personnel control, let alone control of a bureaucracy, is very simple, largely consisting of reward and punishment, with an emphasis on promoting agriculture and war.[57] Chinese scholar Huang Kejian views figures like Li Kui, Wu Qi, and Gongsun Yang as early Legalists, who did not yet realize the limited potential of Fa for law and the significance of Shu.[39]^: 172

In contrast to the old feudalism, Shang or Gongsun Yang considered there to be no single model of rule in the past, and everything changeable as a product of changing conditions. Sinologist Yuri Pines considers this "evolutionary view of history", with economic conditions altering moral values, as distinguishing the "Legalists" critically from "proponents of alternative models of state formation."[58][59]

Hu Shih went as far as to call Xun Kuang, Han Fei and Li Si "champions of the idea of progress through conscious human effort," with Li Si abolishing the feudal system, and 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."

Hu quotes a song by Xun Kuang.[60]

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.

Holding decline to have resulted from a scarcity of resources, Gongsun prescribed statecraft.[38] Questioning traditional rule and the relevance of the past to the present,[21] the first chapter of the Book of Lord Shang cites Gongsun as saying: "Orderly generations did not [follow] a single way; to benefit the state, one need not imitate antiquity."[59] Distinguished by his heavy emphasis on penalty and mutual responsibility (among both minister and population), he instituted severe punishment for the Qin (later reduced).[17]^: 93

Gongsun ultimately did not believe that the method of rule really mattered as long as the state was rich,[20][61] and tried to dispense with the selection of exceptional men through insurance mechanisms while attacking moral discussion as empowering ministers.[62] His anti-bureaucracy may be seen as a precursor to that of Han Fei, and together with their predecessor Mozi may be characterized as following a philosophical tradition of "objective, public, accessible standards" (Fa).[34]^{: 345, 359} In contrast to Shang Yang, though seeking at the motivation of his subjects, Han Fei is much more skeptical of self-interest.[63]

The Shang Yang "school" was favored, though not exclusively, by Emperor Wu of Han.[5]^: 115

Han Fei and his successors often used the term 'Shu' for Shen Buhai's techniques.

Liu Xiang wrote that Shen advised the ruler of men use Shu ('technique'), emphasizing the scrutinizing of achievement to give reward and select capable ministers. He describes describes Shen's doctrines as concerned almost exclusively with personnel management and the monopolization of power, namely the "ruler's role and the methods by which he may control a bureaucracy", being the control of and relations between ruler and minister which he characterized as Wu Wei, relying on persuasion to strictly supervise and hold responsible.

Thus 20th-century philosopher Feng Youlan thus called Shen the leader of the group emphasizing Shu. Sinologist John Makeham nonetheless characterizes Shu as "the agency of several checking systems that together constituted Method (Fa)", whose central principle is accountability. Shen himself never used the term 'Shu', and although Han Fei assigned it to him, he also references Shen as using 'Fa'. Han Fei quotes Shen as saying:

What is called method (fa) is to examine achievement giving rewards, and to use ability as the basis upon which to bestow office.

Shen is, moreover, famous for the dictum, "The Sage ruler relies on method (Fa) and does not rely on wisdom; he relies on technique, not on persuasions."[64]

In contrast to Shang Yang, Shen Buhai still espouses there to be one method of rule alone. Unlike Legalists Shang Yang and Han Fei, although considering ministers a great danger, Shen did not consider the relationship between ruler and minister antagonistic necessarily. His Shu branch largely ignored Shang Yang's direction towards penal codes, and sometimes even opposed punishments.[65][5]^{: 93, 100, 103}

Emperor Jing of Han had two mentors in the doctrines of Shen Buhai, and appointed another "Legalist", Ch'ao Ts'o. Following the Rebellion of the Seven Kingdoms, Jing reformed criminal penalties to reduce injustices and punishments.[66][5]^: 92–93

Though the syncretic Han Feizi speaks on what may have been termed law by earlier scholars, the Fajia themselves were concerned mainly with administration, such that mistranslating the much broader concept of Fa as law would mislead readers as to their theories. Even the more "Legalistic" Book of Lord Shang still engages statutes more from an administrative standpoint, as well as addressing many other administrative questions.[69][14][34]^: 347[5]^{: 92–93, 101, 103}

The Fajia has implications for the work of judges, but "contains no explicit judicial theory".[70][53] Although the conception of the ruler's sovereignty had already been in development antecedently to the Fajia, in contrast to western law, although emphasizing the legitimacy of the ruler, the statesmen of the Fajia did not consider legitimacy sufficient, stressing the necessity of strengthening the ruler's force as a requirement for the practice of administration (Fa).[71]

Although focused on Fa, and relegated as secondary by Han Fei as Shen Dao's doctrine of power or situationist authority (shi), Shen Buhai, Shang Yang, and Han Fei are all motivated "almost totally from the ruler's point of view". This is considered by Sinologist Chad Hansen as constituting a key difference between the Han Feizi and Confucianism, the more universal social standpoint of Mohism, or for that matter Western law.[72][73][5]^: 93[34]^: 360

Though Han Fei espoused that his model state would increase the quality of life, he did not consider this a legitimizing factor (rather, a side-effect of good order). He focused on the functioning of the state, the ruler's role as guarantor within it, and aimed in particular at making the state strong and the ruler the strongest person within it.[74] To this end, Shen Buhai and successor Han Fei are concerned in particular with "the role of the ruler and the means by which he may control a bureaucracy."

The goal of the "Legalist" ruler was conquest and unification of all under heaven (or in the case of Shen Buhai at least defense), and the writings of Han Fei and other Fajia are almost purely practical, eschewing ethics in favour of strategy[75][34]^: 345 teaching the ruler techniques (shu) to survive in a competitive world[34]^: 345[76] through administrative reform: strengthening the central government, increasing food production, enforcing military training, or replacing the aristocracy with a bureaucracy.[76] Han Fei's prince must make use of Fa (administrative methods and standards), surround himself with an aura of wei (majesty) and shi (authority, power, influence),[38][77] and make use of the art (shu) of statecraft. The ruler who follows Tao moves away from benevolence and righteousness, and discards reason and ability, subduing the people through Fa (statutes or administrative methods but implying objective measurements). Only an absolute ruler can restore the world.[77]

The authority to make policy is a basic difference between Confucianism and the Fajia. Proposing a return to feudal ideals, albeit his nobleman being anyone who possessed virtue,[28] Confucians granted authority to "wise and virtuous ministers", allowed to "govern as they saw fit".[5]^: 107 In contrast, Shen Buhai and Shang Yang monopolized policy in the hands of the ruler,[5]^: 107 and Qin administrative documents focused on rigorous control of local officials, and the keeping of written records.[78] Distinguished by their anti-ministerial stance,[79] the Fajia rejected their Confucian contemporaries' espousal of a regime based solely on the charisma of the aristocrats,[80] and much of Fajia's doctrines seek self-regulating and mechanically reliable, if not foolproof means to control or otherwise dispense with officials administering the state. Reducing the human element, the first of these is the universally applicable Fa (administrative methods and standards).[72][3]^: 59

Han (state) figures Shen Buhai and later Han Fei considered the ruler to be in a situation of constant danger from his aides,[34]^: 347 and the target of Han Fei's Fa is not the people, but the scholarly bureaucracy and ambitious advisers – the Confucians, who go on to paint themselves as standing against a "systematic, and brutal reign of terror" against the people.[34]^: 347 Saying that "superior and inferior fight a hundred battles a day",[81] long sections of the Han Feizi provide example of how ministers undermined various rulers, and focus on how the ruler can protect himself against treacherous ministers, strongly emphasizing their mutually different interests.[82]

Though not exceptional, Sinologist Yuri Pines considers this selfish view of human nature to be a pillar of the Fajia, and a number of chapters of the Book of Lord Shang consider men naturally evil. The Fajia are therefore distinct from the Confucians in dismissing the possibility of reforming the elite, that being the ruler and ministers, or driving them by moral commitment. Every member of the elite pursues his own interests. Preserving and strengthening the ruler's authority against these may be considered the Fajia's "singularly pronounced political commitment".[83] On rare occasions, Han Fei lauds such qualities as benevolence and proper social norms; with due consideration for the times they were living in however, the Fajia did not believe that the moral influence or virtue of the ruler was powerful enough to create order.[77]

Considering the power struggle between ruler and minister irreconcilable, and focusing on the prevention of evil rather than the promotion of good, the Fajia largely rejected the utility of both virtue and the Confucian rule of man, insisting on impersonal norms and regulations in their relations.[7]^: 16[84][83] Their approach was therefore primarily at the institutional level, tending toward a clear power structure, "objective, consistent and enforceable rules and regulations," and in the Han Feizi, engaging in sophisticated manipulation tactics to enhance power bases.[85]

Rather than aristocratic fiefs, Qin territory came under the direct control of the Qin rulers, directly appointing officials on the basis of their qualifications.[86] With the state of Qin conquering all the Warring States and founding the "first" Chinese empire in 221 BC, the Fajia had succeeded in propelling state centralization and laying the foundations of Chinese bureaucracy, establishing "efficient and effective" codes that "became the pattern for Chinese politics for the next two millennia".[87] The philosophies of the reformers fell with the Qin, but tendencies remained in the supposedly Confucian imperial government, and the Han Feizi would be studied by rulers in every dynasty.[88] Hui even asserts that Confucianism's role in Chinese history is "[no] more than cosmetic", and that the Fajia are a more accurate description of the Chinese governmental tradition.[89]

In An Introduction to Chinese Philosophy, Karyn Lai characterizes the Fajia as singular in their rejection of "fundamental tenets of then contemporary life", rejecting bureaucratic influence, the importance of relationships in the public domain, institutional fostering of ethical awareness, and the idea of compassionate government.[90]

The Fajia have widely been seen as a homogeneous anti-religious and authoritarian stream of thought. Julia Ching believed it was "utterly devoid of any religious belief, moral sense, or sensitivity to nature",[91] and made the case that the ideal Chinese sage-king was seen as someone who should operate without excessive mysticism or bias favoring any one spiritual tradition by many political factions over thousands of years,[91] explaining the problems various religions have faced in or because of dynastic courts.

Narrowly political by their nature, legalist writings rarely mentioned a divine or supernatural power,[92] but Sor-Hoon Tan, a scholar who generally agreed with Ching's ideas, has mentioned that some Legalists have discussed Heaven and tried to be religious innovators.[91] Legalist–Taoist syncretism has occurred,[93] and a belief in Legalism that was quite influential was salvation if one followed or executed laws correctly.[94]

Mohism or the thought of the Fajia is not based on entities, transcendentals or universals, but parts or roles ("names"),[95] and are therefore relatable to the Confucian rectification of names, which arguably originates in Mozi's development of Fa. For the most part Confucianism does not elaborate on Fa (though Han Confucians embraced Fa as an essential element in administration), though the idea of norms themselves being older,[96] Fa is theoretically derived from the Confucian Li.[97] However, the "core assumption" of Confucianism in rectifying names was that the ruler was supposed to use innate or developed intuition to "settle correct language use".

Rejecting the Confucian idea of parents as a moral model as particular and unreliable, the driving idea of the Mohists was the use of hermeneutics to find objective models/standards (Fa) for ethics and politics, as was done in any practical field, to order or govern society. These were primarily practical rather than principles or rules, as in the square and plumb-line. The Mohists used Fa as "objective, particularly operational or measurement-like standards for fixing the referents of names", or "determining the application of terminology", hoping that analysis of language standards (Fa) would yield some objective way (dao) of moral reform. For Mozi, if language is made objective, then language itself could serve as a source of information and argued that in any dispute of distinctions, one party must be right and one wrong.

Although socially basing it in the ruler (who may not in practice be the monarch), or at least superior, Fa is never merely arbitrary or the ruler's desire, nor does it aim at an intellectual grasp of a definition or principle, but the practical ability to perform a task (dao) successfully, or to "do something correctly in practice" — and in particular, to be able to distinguish various kinds of things from one another. Measuring to determine whether distinctions have been properly drawn, Fa compares something against itself, and judges whether the two are similar, just as with the use of the compass or the L-square. What matches the standard is then the particular object, and thus correct. This constituted the basic conception of Mohist's practical reasoning and knowledge.[98][99][53][34]^{: 347–349, 367}

Of particular concern for the Fajia and the Mohists, the fourth century witnessed the emergence of discussions polarizing the concepts of self and private, commonly used in conjunction with profit and associated with fragmentation, division, partiality, and one-sidelines, with that of the state and "public", represented by the duke and referring to what is official or royal, that is, the ruler himself, associated with unity, wholeness, objectivity, and universality. The latter denotes the "Universal Way". Legalism and Mohism are distinguished by this effort to obtain objectivity.[100][62][101][102][71][103][104][53][34]^{: 348–349}

Mozi said,

Those in the world who perform tasks cannot do without models (Fa) and standards. There is no one who can accomplish their task without models and standards. Even officers serving as generals or ministers, they all have models; even the hundred artisans performing their tasks, they too all have models. The hundred artisans make squares with the set square, circles with the compass, straight lines with the string, vertical lines with the plumb line, and flat surfaces with the level. Whether skilled artisans or unskilled artisans, all take these five as models. The skilled are able to conform to them. The unskilled, though unable to conform to them, by following them in performing their tasks still surpass what they can do by themselves. Thus the hundred artisans in performing their tasks all have models to measure by. Now, for the greatest to order (zhi, also 'govern') the world and those the next level down to order great states without models to measure by, this is to be less discriminating than the hundred artisans.[101]

The influence of the Mohists on the Fajia is likely strong. Though Masayuki Sato translates Fa as law, he explains the concept as more like an objective measuring device. Sinologist Mark Edward Lewis writes: language, such as that of a legal code, is linked to social control. Modern law may be regarded in part as "purified", rectified, or technically regulated language." However, for pre-legal Han state prime minister Shen Buhai, who Han Fei criticized for not standardizing the Fa, correct or perverse words will order or ruin the state. If words are not correct, they do not correspond to reality, and regulation fails.[105]

Sinologist Chad Hansen does not consider the difference between the Fajia and the Confucians "as deep as the Western legal positivists contrast between law and morality." The ancient Chinese acted on a variety of "rival social codes" requiring interpretation, with a focus on terminology. The Confucians, Mohists, and Han Fei all consider social order their goal, with the difference, Hansen considers, being an emphasis on education and the use of intuition.

The Confucian scholar class engaged in a flexible interpretation of traditional codes, while others sought to fix a changeable code in the ruler. However, although warning against punishments and practical measures, Confucius accepts and even praises Zhou loyalists like Guan Zhong who practice Fa as Confucians; it is the later Mencius who takes him as representing "the first move toward the realistic techniques of gathering power." Although essentially appealing to "stable, strong, public institutions of social regulation," the Guanzi, possibly written after the Han Feizi, still does not appear to make great distinction between the various social codes, only the "range of application, source, and subject matter."[34]^: 357

In the era of the Qin ascendancy, the difference between "explicitly anti-Confucian" Han Fei and Qin-influenced Confucian Xun Kuang becomes whether to use Fa and punishment alone, centered on the ruler, or Fa combined with the Confucian scholar classes' techniques of education and inculcation, with Xun Kuang accepting the role punishment.

Despite history's glossing of Shen Buhai with others of the Fajia, receiving him as a cryptic Daoist using terms like Wu Wei and Dao, Sinologist Herrlee G. Creel considered Shen to still have more in common with the Confucians than the later Fajia. In contrast to Confucius, Shen never mentions virtue, and insists on constant vigilance over ministerial performance. But in contrast to Shang Yang, no text identifies him with penal law, and like Confucius Shen still emphasizes the importance of selecting able officials. Shang Yang does not.

Shen likely predated the Dao De Ching or Zhuangzi. He used Wu Wei to mean reduced activity by the ruler, not engaging in ministerial activities. In this, he uses it in a manner similarly to the Analects of Confucius, which quotes Confucius as saying, "Was it not shun who governed by means of Wu wei yet ruled well? What did he do? He merely corrected his person and took his proper position (facing south) as ruler." Apparently paraphrasing the Analects, Shen Buhai's statement that those near him will feel affection, while the far will yearn for him, stands in contrast to Han Fei, who considered the relationship between the ruler and ministers irreconcilable.

Although expressing anti-Confucian sentiment, Shang Yang was supposedly taught by a Confucian syncretist, Shi Jiao, who, stressing the importance of "name" (rectification of names), connected it with reward and punishment. In contrast to the Han Feizi, though considering them to be "digressions of minor importance", Yuri Pines notes in Legalism in Chinese Philosophy that the Book of Lord Shang "allowed for the possibility that the need for excessive reliance on coercion would end and a milder, morality-driven political structure would evolve."

While Shang Yang stresses transition towards a punishment-based state minimalism, Sinologist Chad Hansen considers Han Fei more Confucian, more Mohist, and more totalitarian precisely on account of stressing both reward and punishment, which encourages virtue rather than just preventing wrongdoing even if Han Fei doesn't believe in relying on virtue. The greater inclusion of reward indicates a state leadership with concerns which cover a "whole range" of behavior beyond Shang Yang's objects of war, agriculture, and reduction of ministers; to quote Han Fei, "carpenters have manual skill; physicians know how to prepare drugs; but, if men are ordered to take up these professions on account of their merits in beheading, then they do not have the required abilities."

Apart from his supposed teaching by Confucian Xun Kuang, which Hansen apparently finds plausible enough, Han Fei's theory of utilizing Fa to establish names for the settling of disputes would be recorded as supposedly drawn from Confucius' establishing of names by rites, the difference being that the Confucian ruler was supposed to use cultivated intuition to settle terms, while Shen and Han Fei place responsibility for settling the terms of a job on the minister. Although the tight, centralized control conflicts with the Confucian idea of the autonomous minister, Han Fei's Xing-Ming, or personnel control, is in line with both the Confucian and Mohist rectification of names, and is relatable to the Confucian tradition in which a promise or undertaking, especially in relation to a government aim, entails punishment or reward.

The Mozi and the Guanzi suggest that people will conform to standards from above if administration is precise, or even just a ruler-like attitude. Although Han Fei clearly favors punishment, it may nonetheless still be regarded as secondary; Han Fei's sociological theory merely substitutes the traditional authorities of Confucianism with the doctrine of situational authority (shi), or societal, authoritarian inculcation, that he would associate with Shen Dao, as a source of social conformity. Together with language authority guiding "role performance", they may be taken as derived more ultimately from Confucianism and Mohism, with Hansen considering the difference to be use "exclusively in the interest of the ruler."[5]^: 65[34]^{: 358, 360}

Despite being "anathema" to some of the Fajia, Confucianism, with its social and moral values, coexisted "remarkably well" during the reign of the First Emperor, with one of his letters circulated in the commanderies extolling Fa as upholding Confucian values.[106]

At the time of Sinologist Herrlee Creel's 1970 The Fa-Chia, "Legalists" or "Administrators"?, a "great many" scholars, Creel says, still characterized the "Fajia" as the "School of Law." Creel's paper attempts to differentiate the then "largely forgotten" Shen Buhai's usage of Fa as administrative "method", from the more "legal" usage typically interpreted of Shang Yang.

But despite the framing of Han historians, Sinologist Chad Hansen notes, the Fajia did not seem to think they were using Fa differently from the Mohists or anyone else, whether in the direction of statutes or administration of the bureaucracy. The closest that Han Fei comes to standard laws would be Fa-ling, or "interpretive standards with commands"; this along with other terms, including interpretive-standard criteria (fa-du), interpretive-standard methods (fa-shu), and interpretive-standard morality (fa-i).

The Qin Empire themselves, under Li Si would come to institute Lu, or (the ancient Chinese conception of) laws, a new term for a new, universal institution, rarely used in older texts; but one example of an excavated Qin text still consists of twenty-five abstract model patterns guiding procedure based on actual situations.

In contrast to a more Western understanding of law, with penal law in particular backed by punishment, while other terms might denote mere command, the essential characteristic of Fa is measurement, and even the Confucian Xun Kuang distinguished Fa from regulations and punishment in his usage. Rather, Mozi considered the elucidation of different "types" or "classes" to be the basis of both cognitive thinking and sociopolitical practice. Referring to an easily projectable standard of utility, the Mohists explain "Fa" as compasses or circles, and may be prototypes, exemplars, or (specific) analogies.

The Fajia do not contrast "penal law" with the Confucian Li, which may be described as elite, ancient, traditionalist, intuitive-moral, ritualistic. Rather, Shang Yang and Han Fei contrast the Confucian Li, and the "authority of traditional content" (Hansen), with the "publicity, objectivity and accessibility" of Fa, measurement standards, and their aim of maximizing the wealth and strength of the ruler and state. Contrasting Fa with private distortions and behavior, theoretically, the Fa of the so-called Fajia exactly follows Mozi.

Shang Yang's systematic application of penalties increase the tendency to see it as penal, but arguably does not change meaning from that of the Mohists. Shang Yang's innovation was not penal law. Rather, Shang Yang's idea was that penal codes should be reformed to have the same kind of objectivity, clarity and accessibility as the craft-linked instruments. Shang Yang and Han Fei intended their "codes" be "self-interpreting" (Hansen). Applied to economy and institution, Shang Yang's Fa is total and anti-bureaucratic, calculating rank mathematically from the adherence to standards (Fa) in the performance of roles (names or models), namely that of soldiers and (to a lesser extent) farmers. Translation regardless, Han Fei credits Shang Yang with the practice of Fa, not law, in statecraft.

Han Fei shows no revolutionary insight into rules; objectively-determined "models" (Fa) or "names" (titles/roles), being measured against, replace intuitive guidance, especially that of the ruler. It is these that enable control of a bureaucracy. Although Han Fei distinguishes the more standard or uniform usage of Shang Yang's reward and punishment across the population, from the more administrative usage of Shen Buhai, whose Fa he names Shu, Han Fei connects his own practice of reward and punishments with Shu, that is, with management, in which ministers are held to performance standards they set for themselves. As Hansen notes, this can hardly be considered a standard legal practice.

Carine Defoort of New York University explains:

Names are orders: by manipulating a network of names from his polar position, the ruler keeps everything under control. While his orders descend step by step through the official hierarchy to the furthest corners of the realm, performances ascend to be checked by him.

Because Fa is necessary for articulating administrative terms, it is presupposed in any application of punishment, and Han Fei stressed measurement-like links between rewards and punishments and performance. Applied through incentives and disincentives, Fa provided guidance for behavior, the performance of civil and military roles, and advancement.[108][71][109][110][111][112]^: 141[113][53][5]^: 68, 93[20]^: 59

Hansen considers the Guanzi to advocate Fa, or objective standards, but not law. Aiming to control criminals and officials without resentment, the closest it comes to legal retribution would be the Confucianistic idea that punishments should be appropriate to the name of the punishment, a central theme of the Han Feizi. But this aims more at warning than proportion. Suffice to say, it isn't assumed that punishment backs regulations as the "only viable motivation for people's obedience".[114][115][116][5]^{: 67, 81, 92–95, 99}[34]^{: 346, 349–350, 352–354, 356–361, 365–367, 369}

While Shen Buhai and Shen Dao's current may not have been hostile to Confucius,[5]^: 64 Shang Yang and Han Fei emphasize their rejection of past models as unverifiable if not useless ("what was appropriate for the early kings is not appropriate for modern rulers").[132][59][53][133] In the west, past scholars have argued that Shang Yang sought to establish the supremacy of what some have termed positive law at the expense of customary or "natural" law.[125] Han Fei argued that the age of Li had given way to the age of Fa, with natural order giving way to social order and finally political order. Together with that of Xun Kuang, their sense of human progress and reason guided the Qin dynasty.[134]

Intending his Dao (way of government) to be both objective and publicly projectable,[34]^: 352 Han Fei argued that disastrous results would occur if the ruler acted on arbitrary, ad-hoc decision making, such as that based on relationships or morality which, as a product of reason, are "particular and fallible". Li, or Confucian customs, and rule by example are also simply too ineffective.[77][135][136] The ruler cannot act on a case-by-case basis, and so must establish an overarching system, acting through Fa (administrative methods or standards). Fa is not partial to the noble, does not exclude ministers, and does not discriminate against the common people.[136]

Linking the "public" sphere with justice and objective standards, for Han Fei, the private and public had always opposed each other.[100] Taking after Shang Yang he lists the Confucians among his "five vermin",[137] and calls the Confucian teaching on love and compassion for the people the "stupid teaching" and "muddle-headed chatter",[138] the emphasis on benevolence an "aristocratic and elitist ideal" demanding that "all ordinary people of the time be like Confucius' disciples".[77] Moreover, he dismisses it as impracticable, saying that "In their settled knowledge, the literati are removed from the affairs of the state ... What can the ruler gain from their settled knowledge?",[139] and points out that "Confucianism" is not a unified body of thought.[140]

Keeping in mind the time from which he is speaking, A. F. P. Hulsewé called Shang Yang the "founder of the school of law", and considers his unification of punishments one of his most important contributions; that is, giving the penalty of death to any grade of person disobeying the king's orders. Shang Yang even expected the king, though the source of law (authorizing it), to follow it. This treatment is in contrast to ideas more typical of archaic society, more closely represented in the Rites of Zhou as giving different punishments to different strata of society.

Hulsewe points out that Sima Tan considered equal treatment the "school of law's" most salient point: "They do not distinguish between close and far relatives, nor do they disriminate between noble and humble, but in an uniform manner they decide on them in law."[141] The Han dynasty adopted essentially the same denominations of crimes, and conception of equality, as Shang Yang set down for Qin, without collective punishment of the three sets of relatives.[142]

Shang Yang appeared to act according to his own teachings,[141] and translator Duvendak (1928) references him as being considered "like a bamboo‑frame which keeps a bow straight, and one could not get him out of his straightness", even if spoken of by some pre-modern Chinese in ill regard with the fall of Qin. Duvendak believed that Shang Yang should be of interest not just to Sinologists, but Western Jurists as well.[143]

The earliest known written documentation for the Chinese abacus, the Suan Pan, dates to the 2nd century BC (its original design is unknown).

Sinologist Herrlee G. Creel believed the term originally had the sense of numbers, with implicit roots in statistical or categorizing methods, using record-keeping in financial management as a numerical measure of accomplishment. He notes that command of finance was generally held by the head of government from the beginning of the Zhou dynasty; an example of auditing dates to 800 BC, and the practice of annual accounting solidified by the Warring States period and budgeting by the first century BC.[148][149][150][151][152][153][20]^: 51[51]^: 283[34]^: 359[5]^{: 80–81, 93, 100, 103}

In the Guanzi the artisan's Shu is explicitly compared to that of the good ruler.[154] The History of the Han (Han Shu) lists texts for Shu as devoted to "calculation techniques" and "techniques of the mind", and describes the Warring States period as a time when the shu arose because the complete Dao had disappeared.[155] Hsu Kai (920–974 AD) calls Shu a branch in, or components of, the great Dao, likening it to the spokes on a wheel. He defines it as "that by which one regulates the world of things; the algorithms of movement and stillness". Mastery of techniques was a necessary element of sagehood.[155]

Another example of Shu is Chuan-shu, or "political maneuvering". The concept of Ch'uan, or "weighing" figures in "legalist" writings from very early times. It also figures in Confucian writings as at the heart of moral action, including in the Mencius and the Doctrine of the Mean. Weighing is contrasted with "the standard". Life and history often necessitate adjustments in human behavior, which must suit what is called for at a particular time. It always involves human judgement. A judge that has to rely on his subjective wisdom, in the form of judicious weighing, relies on Ch'uan. The Confucian Zhu Xi, who was notably not a restorationist, emphasized expedients as making up for incomplete standards or methods.[156]

"The Way of Listening is to be giddy as though soused. Be dumber and dumber. Let others deploy themselves, and accordingly, I shall know them."

Right and wrong whirl around him like spokes on a wheel, but the sovereign does not complot. Emptiness, stillness, non-action—these are the characteristics of the Way. By checking and comparing how it accords with reality, [one ascertains] the "performance" of an enterprise.[157][158]

Han Fei

Detail of The Spinning Wheel, by Chinese artist Wang Juzheng, Northern Song Dynasty (960–1279)[159]

In the Han Dynasty secretaries of government who had charge of the records of decisions in criminal matters were called Xing-Ming, which Sima Qian (145 or 135 – 86 BC) and Liu Xiang (77–6 BC) attributed to the doctrine of Shen Buhai (400 – c. 337 BC). Liu Xiang goes as far as to define Shen Buhai's doctrine as Xing-Ming.[5]^{: 72, 80, 103–104}[160][161]

Shen actually used an older, more philosophically common equivalent, ming-shi, (simplified Chinese: 名实; traditional Chinese: 名實; pinyin: míngshí) linking the "Legalist doctrine of names" with the 200-year name and reality (ming shi) debates of the school of names – another school evolving out of the Mohists. But the earliest literary occurrence for Xing-Ming, in the Zhan Guo Ce, is also in reference to the school of names.[162][163]

The logician Deng Xi (died 501 BC), a contemporary of Confucius,[164] is cited by Liu Xiang for the origin of the principle of Xing-Ming. Serving as a minor official in the state of Zheng, Deng is reported to have drawn up a code of "penal laws." Associated with litigation, he is said to have argued for the permissibility of contradictory propositions, likely engaging in hair-splitting debates on the interpretation of "laws," "legal principles" and definitions.[165]

Shen Buhai solves this through Wu wei, or not getting involved, making an official's words his own responsibility,[166] saying, "The ruler controls the policy, the ministers manage affairs. To speak ten times and ten times be right, to act a hundred times and a hundred times succeed – this is the business of one who serves another as minister; it is the not the way to rule."[5]^: 65

Despite the penal associations in the Han era, and the association of the term Xing with punishment in Han times, Creel suggests that the term did not originally mean punishment. Moreover, Creel finds it highly unlikely that Shen used punishments in his own time, with Shen's fragments quoted as saying the ruler practices Xing-Ming while lacking punishment, and the apparent absence of the doctrine or practice of uniform reward and punishment in his state.

Liu Xiang and Creel both associate its practice in Qin and Han times as denoting a "system for the organization and control" of official corps, comparing title and performance, and "emphasizing the high position of superiors"(Creel), or as Liu Xiang says, ""honoring the ruler and humbling the minister, exalting superiors and curbing inferiors."[167]

Robin Yates suggests it otherwise derives from the use of military flags and pennants in war, as in a military method of organization, in the fifth century B.C.[168]

Ming-shi discussions are prominent in the Han Feizi,[169] and Dong Zhongshu's writings on "personnel testing and control" still use Ming-shi instead of Xing-Ming, in a manner "hardly distinguishable" from the Han Feizi,(Creel) although advocating against punishments.[170]

Ming ("name") sometimes has the sense of speech – so as to compare the statements of an aspiring officer with the reality of his actions – or reputation, again compared with real conduct (xing "form" or shi "reality").[5]^: 83[171][172] Two anecdotes by Han Fei provide examples: The Logician Ni Yue argued that a white horse is not a horse, and defeated all debaters, but was still tolled at the gate. In another, 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 after it and returned claiming to have seen it, and was thereby identified as a flatterer.[172]

Shen Buhai's personnel control, or rectification of names (such as titles) worked thereby for "strict performance control" (Hansen) correlating claims, performances and posts.[34]^: 359 It would become a central tenant of both "Legalist" statecraft[162] and its Huang-Lao derivatives. Rather than having to look for "good" men, ming-shi or xing-ming can seek the right man for a particular post, though doing so implies a total organizational knowledge of the regime.[20]^: 57

More simply though, it can allow ministers to "name" themselves through accounts of specific cost and time frame, leaving their definition to competing ministers. Claims or utterances "bind the speaker to the realization a job (Makeham)." This was the doctrine, with subtle differences, favoured by Han Fei. Favoring exactness, it combats the tendency to promise too much.[166][172][173] The correct articulation of Ming is considered crucial to the realization of projects.[166][162]

In Chinese Thought: An Introduction, S. Y. Hsieh suggests a set of assumptions underlying the concept of (xing-ming): In a large community, a group of officials has to be responsible for a wide range of things to allow them to live together peacefully, with a leader that issues orders, and assigns responsibilities and awards corresponding to capabilities demonstrated by performance. Because it is necessary to recruit from the whole population, bureaucratic government marks the end of feudal government.[17]^: 90

Zhaoming mirror frame, Western Han dynasty

Sinologist Chad Hansen characterizes Shen Buhai's Shu or techniques, aimed at "preventing the usual drain and flow of the ruler's power to ministers", primarily as Wu Wei, and secondarily a rectification of names for personnel control. Wu Wei's Confucian antecedent meant that ministers carry out all the functions. The (qualified) non-action of the ruler ensures his power and the stability of the polity, and can therefore, Roger T. Ames says, be considered his foremost technique.

Sinologist Herrlee G. Creel considers the "conception of the ruler's role as a supreme arbiter", who maintains power while leaving details to ministers, to have a "deep influence on the theory and practice of Chinese monarchy". Playing a "crucial role in the promotion of the autocratic tradition", what is termed Wu wei (or inaction) would become the political theory of the Fajia (or "Chinese Legalists"), if not becoming their general term for political strategy.

Following Shen Buhai strongly advocated by Han Fei, during the Han dynasty up until the reign of Han Wudi rulers confined their activity "chiefly to the appointment and dismissal of his high officials", a plainly "Legalist" practice inherited from the Qin dynasty.[174][175][5]^: 99[34]^: 359

Lacking any metaphysical connotation, Shen used the term Wu wei to mean that the ruler, though vigilant, should not interfere with the duties of his ministers,[5]^: 62–63[17]^: 92 acting through administrative method. Shen says:

The ruler is like a mirror, reflecting light, doing nothing, and yet, beauty and ugliness present themselves; (or like) a scale establishing equilibrium, doing nothing, and yet causing lightness and heaviness to discover themselves. (Administrative) method (Fa) is complete acquiescence. (Merging his) personal (concerns) with the public (weal), he does not act. He does not act, and yet as a result of his non-action (wuwei) the world brings itself to a state of complete order.[5]^: 64[90]^: 172

Shen Buhai argued that if the government were organized and supervised relying on proper method (Fa), the ruler need do little – and must do little.[5]^: 69[20]^: 66 Although less antagonistic than his successors, Shen still believed that the ruler's most able ministers are his greatest danger,[20]^: 35 and is convinced that it is impossible to make them loyal without techniques.[176] Creel explains: "The ruler's subjects are so numerous, and so on alert to discover his weaknesses and get the better of him, that it is hopeless for him alone as one man to try to learn their characteristics and control them by his knowledge ... the ruler must refrain from taking the initiative, and from making himself conspicuous – and therefore vulnerable – by taking any overt action."[5]^: 66

Shen Buhai portrays the ruler as putting up a front to hide his dependence on his advisers. Aside from hiding the ruler's weaknesses, Shen's ruler, therefore, makes use of method (Fa) in secrecy. Even more than with Han Fei, Shen Buhai's ruler's strategies are a closely guarded secret, aiming for a complete independence that challenges "one of the oldest and most sacred tenets of Confucianism", that of respectfully receiving and following ministerial advice.[90]^{: 171–172, 185}

Though espousing an ultimate inactive end, the term does not appear in the Book of Lord Shang, ignoring it as an idea for control of the administration.[5]^: 69

Shen's ruler plays no active role in governmental functions. He should not use his talent even if he has it. Not using his own skills, he is better able to secure the services of capable functionaries. However, Sinologist Herrlee G. Creel also argues that not getting involved in details allowed Shen's ruler to "truly rule", because it leaves him free to supervise the government without interfering, maintaining his perspective.[5]^: 65–66[175][166]

Adherence to the use of technique in governing requires the ruler not engage in any interference or subjective consideration.[177] Sinologist John Makeham explains: "assessing words and deeds requires the ruler's dispassionate attention; (yin is) the skill or technique of making one's mind a tabula rasa, non-committaly taking note of all the details of a man's claims and then objectively comparing his achievements of the original claims."[177]

A commentary to the Shiji quotes a now-lost book with Shen Buhai saying: "By employing (yin), 'passive mindfulness', in overseeing and keeping account of his vassals, accountability is deeply engraved." The Guanzi similarly says: "Yin is the way of non-action. Yin is neither to add to nor to detract from anything. To give something a name strictly on the basis of its form – this is the Method of yin."[177][178]

Yin also aimed at concealing the ruler's intentions, likes and opinions.[177] Shen advises the ruler to keep his own counsel, hide his motivations and conceal his tracks in inaction, availing himself of an appearance of stupidity and insufficiency.[5]^: 67[20]^: 35

If the ruler's intelligence is displayed, men will prepare against it; If his lack of intelligence is displayed, they will delude him. If his wisdom is displayed, men will gloss over (their faults); if his lack of wisdom is displayed, they will hide from him. If his lack of desires is displayed, men will spy out his true desires; if his desires are displayed, they will tempt him. Therefore (the intelligent ruler) says "I cannot know them; it is only by means of non-action that I control them."[5]^: 66[179][39]^: 185

Said obscuration was to be achieved together with the use of Method (Fa). Not acting himself, he can avoid being manipulated.[17]^: 92

Despite such injunctions, it is clear that the ruler's assignments would still be completely up to him.[180]

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 Chinese Immortal Han Xiangzi riding a cloud

A floating seed of the p'eng plant, meeting a whirlwind, may be carried a thousand li, because it rides on the power (shi) of the wind. If, in measuring an abyss, you know that it is a thousand fathoms deep, it is owing to the figures which you find by dropping a string. By depending on the power (shi) of a thing, you will reach a point, however, distant it may be, and by keeping the proper figures, you will find out the depth, however deep it may be. The Book of Lord Shang

Generally speaking, the "Fajia" understood that the power of the state resides in social and political institutions, and are innovative in their aim to subject the state to them.[188][51]^: 268[90]^: 175 Like Shen Buhai, Shen Dao largely focused on statecraft (Fa), and Confucian Xun Kuang discusses him in this capacity, never referencing Shen Dao in relation to power.[189][17]^: 93[190][191] Shen Dao is remembered for his theories on shi (lit. "situational advantage", but also "power" or "charisma") because Han Fei references him in this capacity.[192]

In the words of Han Fei,

The reason why I discuss the power of position is for the sake of ... mediocre rulers. These mediocre rulers, at best they do not reach the level of [the sages] Yao or Shun, and at worst they do not behave like [the arch-tyrants] Jie or Zhou. If they hold to the law and depend on the power of their position, there will be order; but if they abandon the power of their position and turn their backs on the law, there will be disorder. Now if one abandons the power of position, turns one's back on the law, and waits for a Yao or Shun, then when a Yao or a Shun arrives there will indeed be order, but it will only be one generation of order in a thousand generations of disorder ... Nevertheless, if anyone devotes his whole discourse to the sufficiency of the doctrine of position to govern All-under-Heaven, the limits of his wisdom must be very narrow.[132]

Used in many areas of Chinese thought, shi probably originated in the military field.[193] Diplomats relied on concepts of situational advantage and opportunity, as well as techniques (shu) involving secrecy long before the ascendancy of such concepts as sovereignty or law, and were used by kings wishing to free themselves from the aristocrats.[194] Sun Tzu would go on to incorporate Taoist philosophy of inaction and impartiality, and Legalist punishment and rewards as systematic measures of organization, recalling Han Fei's concepts of power (shi) and techniques (shu).[16]

Henry Kissinger's On China says: "Chinese statesmanship exhibits a tendency to view the entire strategic landscape as part of a single whole ... Strategy and statecraft become means of 'combative coexistence' with opponents. The goal is to manoeuvre them into weakness while building up one's own shi, or strategic position." Kissinger considers the "manoeuvring" approach an ideal, but one that ran in contrast to the conflicts of the Qin dynasty.[195]

Searching out the causes of disorder, Shen Dao observed splits in the ruler's authority.[112]^: 122 Shen Dao's theory on power echoes Shen Buhai, referenced by Xun Kuang as its originator, who says "He who (can become) singular decision-maker can become the sovereign of All under Heaven."[51]^: 268[196][127] Shen Dao's theory may otherwise have been borrowed from the Book of Lord Shang,[17]^: 93[197] originating in Shang Yang and Shen Dao's abandonment of a singular Fa, or Standard, as correct.[34]^: 317

For Shen Dao, "Power" (勢 shi) refers to the ability to compel compliance; it requires no support from the subjects, though it does not preclude this.[192] (shi's) merit is that it prevents people from fighting each other; political authority is justified and essential on this basis.[198] Shen Dao says: "When All under Heaven lacks the single esteemed [person], then there is no way to carry out the principles [of orderly government, li 理]. ... Hence the Son of Heaven is established for the sake of All under Heaven ... All under Heaven is not established for the sake of the Son of Heaven ..."[127]

Talent cannot be displayed without power.[199] Shen Dao says: "The flying dragon rides on the clouds and the rising serpent wanders in the mists. But when the clouds disperse and the mists clear up, the dragon and the serpent become the same as the earthworm and the large winged black ant because they have lost what they ride."[192] Leadership is not a function of ability or merit, but is given by some process, such as giving a leader to a group.[200] "The ruler of a state is enthroned for the sake of the state; the state is not established for the sake of the prince. Officials are installed for the sake of their offices; offices are not established for the sake of officials ..."[100][193]

While moral capability is usually disregarded by the Fajia, Shen Dao considers it useful in terms of authority. If the ruler is inferior but his command is practiced, it is because he is able to get support from people.[192] But his ideas otherwise constitute a "direct challenge" to Confucian virtue.[201] Virtue is unreliable because people have different capacities. Both morality together with intellectual capability are insufficient to rule, while position of authority is enough to attain influence and subdue the worthy, making virtue "not worth going after".[202][203][90]^: 174

Like Shen Dao, Han Fei seems to admit that virtue or charisma can have persuasive power even in his own time.[204] However, he considers virtue instrumental, and Wu-wei, or nonaction, as its essence.[205] Furthermore, he criticizes virtue as insufficient; power should be amassed through "laws" (fa),[197] and unlike Shen considers government by moral persuasion and government by power (shi) mutually incompatible.[192] The ruler's authority (shi) should depend neither on his own personal qualities or cultivation, or even upon Shen Dao's position or power, but on Fa (law or checks and balances), a more vital source for his authority. Shang Yang and Han Fei's rejection of charisma (shi) as ineffective underwrite their rejection of the Confucian ruler.[34]^: 366[90]^{: 170, 181} Han Fei does stress that the leader has to occupy a position of substantial power before he is able to use these or command followers. Competence or moral standing do not allow command.[199]

For Han Fei, in order to actually influence, manipulate or control others in an organization and attain organizational goals it is necessary to utilize techniques (shu), regulation (fa), and rewards and punishment – the "two handles".Reward and punishment determine social positions – the right to appoint and dismiss. In line with Shi, these should never be relegated. The ruler must be the sole dispenser of honors and penalties. If these are delegated to the smallest degree, and people are appointed on the basis of reputation or worldly knowledge, then rivals will emerge and the ruler's power will fall to opinion and cliques (the ministers). Allowing him to prevent collapse by combating or resolving ministerial disagreements and ambitions, the rule's exclusive authority outweighs all other considerations, and Han Fei requires that the ruler punish disobedient ministers even if the results of their actions were successful. Goods may not be considered meaningful outside of his control.[188][206][207][12][208]

Devoting the entirety of Chapter 14, "How to Love the Ministers", to "persuading the ruler to be ruthless to his ministers", Han Fei's enlightened ruler strikes terror into his ministers by doing nothing (wu wei). The qualities of a ruler, his "mental power, moral excellence and physical prowess" are irrelevant. He discards his private reason and morality, and shows no personal feelings. What is important is his method of government. Fa (administrative standards) require no perfection on the part of the ruler.[214]

Sinologist Chad Hansen views Han Fei as "playing an important role in furthering the authoritarian distortion of Daoism", which would later be inherited by Neo-Confucianism.[34]^: 345 Although Han Fei's use of Wu-Wei may have been derivative of Daoism, its Dao emphasizes autocracy ("Tao does not identify with anything but itself, the ruler does not identify with the ministers"). Randall P. Peerenboom argue's that Han Fei's Shu (technique) is arguably more of a "practical principle of political control" than any state of mind.[215][72] Han Fei nonetheless begins by advising the ruler to remain "empty and still".

Tao 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.

Tao exists in invisibility; its function, in unintelligibility. Be empty and reposed and have nothing to do-Then from the dark see defects in the light. See but never be seen. Hear but never be heard. Know but never be known. If you hear any word uttered, do not change it nor move it but compare it with the deed and see if word and deed coincide with each other. Place every official with a censor. Do not let them speak to each other. Then everything will be exerted to the utmost. Cover tracks and conceal sources. Then the ministers cannot trace origins. Leave your wisdom and cease your ability. Then your subordinates cannot guess at your limitations.

The bright ruler is undifferentiated and quiescent in waiting, causing names (roles) to define themselves and affairs to fix themselves. If he is undifferentiated then he can understand when actuality is pure, and if he is quiescent then he can understand when movement is correct.[216][217][218][219][39]^{: 186–187}[220]

Han Fei's commentary on the Tao Te Ching asserts that perspectiveless knowledge – an absolute point of view – is possible, though the chapter may have been one of his earlier writings.[34]^: 371

Han Fei was notoriously focused on what he termed Xing-Ming (Chinese: 刑名; pinyin: xíngmíng) Possibly referring to the drafting and imposition of standardized terms Xing-MIng functions through binding declarations (Ming), like a legal contract. Verbally committing oneself, a candidate is allotted a job, indebting him to the ruler. "Naming" people to (objectively determined) positions, it rewards or punished according to the proposed job description and whether the results fit the task entrusted by their word, which a real minister fulfils.

Han Fei insists on the perfect congruence between words and deeds. Fitting the name is more important than results. The completion, achievement, or result of a job is its assumption of a fixed form (xing), which can then be used as a standard against the original claim (ming). A large claim but a small achievement is inappropriate to the original verbal undertaking, while a larger achievement takes credit by overstepping the bounds of office.

Han Fei's "brilliant ruler" "orders names to name themselves and affairs to settle themselves".

If the ruler wishes to bring an end to treachery, then he examines into the congruence of the congruence of hsing (form/standard) and claim. This means to ascertain if words differ from the job. A minister sets forth his words and on the basis of his words, the ruler assigns him a job. Then the ruler holds the minister accountable for the achievement which is based solely on his job. If the achievement fits his job, and the job fits his words, then he is rewarded. If the achievement does not fit his jobs and the job does not fit his words, then he will be punished.

Assessing the accountability of his words to his deeds, the ruler attempts to "determine rewards and punishments in accordance with a subject's true merit" (using Fa). It is said that using names (ming) to demand realities (shi) exalts superiors and curbs inferiors, provides a check on the discharge of duties, and naturally results in emphasizing the high position of superiors, compelling subordinates to act in the manner of the latter.

Han Fei considers Xing-Ming an essential element of autocracy, saying that "In the way of assuming Oneness names are of first importance. When names are put in order, things become settled down; when they go awry, things become unfixed." He emphasizes that through this system, earlier developed by Shen Buhai, uniformity of language could be developed, functions could be strictly defined to prevent conflict and corruption, and objective rules (Fa) impervious to divergent interpretation could be established, judged solely by their effectiveness. By narrowing down the options to exactly one, discussions on the "right way of government" could be eliminated. Whatever the situation (shi) brings is the correct Dao.

Though recommending use of Shen Buhai's techniques, Han Fei's Xing-Ming is both considerably narrower and more specific. The functional dichotomy implied in Han Fei's mechanistic accountability is not readily implied in Shen's, and might be said to be more in line with the later thought of the Han dynasty linguist Xu Gan than that of either Shen Buhai or his supposed teacher Xun Kuang.[221][62][222][223][95][17]^: 81[51]^: 284[224][5]^: 86[5]^{: 83, 87, 104}[34]^{: 308, 349, 365, 367, 370, 372}

Mythical White Tiger. Qin Shi Huang was called the "Tiger of Qin".

Supposing the tiger cast aside its claws and fangs and let the dog use them, the tiger would, in turn, be subjected by the dog. Han Fei Zi

A modern statue of the First Emperor and his attendants on horseback

The two August Lords of high antiquity grasped the handles of the Way and so were established in the center. Their spirits mysteriously roamed together with all transformations and thereby pacified the four directions. Huainanzi

Though not entirely accurately, most Han works identify Shang Yang with penal law. Its discussion of bureaucratic control is simplistic, chiefly advocating punishment and reward. Shang Yang was largely unconcerned with the organization of the bureaucracy apart from this.[3]^: 59[5]^{: 100, 102, 105} The use of these "two handles" (punishment and reward) nonetheless forms a primary premise of Han Fei's administrative theory.[225] However, he includes it under his theory of Shu in connection with Xing-Ming.[34]^: 367[53]

As a matter of illustration, if the "keeper of the hat" lays a robe on the sleeping Emperor, he has to be put to death for overstepping his office, while the "keeper of the robe" has to be put to death for failing to do his duty.[88] The philosophy of the "Two Handles" likens the ruler to the tiger or leopard, which "overpowers other animals by its sharp teeth and claws"(rewards and punishments). Without them he is like any other man; his existence depends upon them. To "avoid any possibility of usurpation by his ministers", power and its "handles" of reward and punishment must "not be shared or divided", concentrating them in the ruler exclusively.

In practice, this means that the ruler must be isolated from his ministers. The elevation of ministers endangers the ruler, with which he must be kept strictly apart. Punishment confirms his sovereignty; eliminating anyone who oversteps his boundary, regardless of intention. Fa "aims at abolishing the selfish element in man and the maintenance of public order", making the people responsible for their actions.[214]

Han Fei's rare appeal (among Legalists) to the use of scholars (method specialists) makes him comparable to the Confucians, in that sense. The ruler cannot inspect all officials himself, and must rely on the decentralized (but faithful) application of laws and methods (fa). Contrary to Shen Buhai and his own rhetoric, Han Fei insists that loyal ministers (like Guan Zhong, Shang Yang, and Wu Qi) exist, and upon their elevation with maximum authority. Though Fajia sought to enhance the power of the ruler, this scheme effectively neutralizes him, reducing his role to the maintenance of the system of reward and punishments, determined according to impartial methods and enacted by specialists expected to protect him through their usage thereof.[226][227] Combining Shen Buhai's methods with Shang Yang's insurance mechanisms, Han Fei's ruler simply employs anyone offering their services.[62]

A modern marble statue of the first Emperor of China, Qin Shi Huang

Juyong Pass

Guided by thought belonging to what would be called the Fajia, the First Qin Emperor Qin Shi Huang conquered and unified the China's warring states into thirty-six administrative provinces, under what is commonly thought of as the first Chinese empire, the Qin dynasty. The Qin document "On the Way of Being an Official" proclaims the ideal official as a responsive conduit, transmitting the facts of his locale to the court, and its orders, without interposing his own will or ideas. It charges the official to obey his superiors, limit his desires, and to build roads to smooth the transmitting of directives from the center without modification. It praises loyalty, absence of bias, deference, and the appraisal of facts.[78]

The intrastate realpolitik would end up devouring the philosophers themselves. Holding that if punishments were heavy and Fa equally applied, neither the powerful nor the weak would be able to escape consequences, Shang Yang advocated the state's right to punish even the ruler's tutor, and ran afoul of the future King Huiwen of Qin (c. 338–311 BC). Whereas at one point, Shang Yang had the power to exile his opponents (and, thus, eviscerate individual criticism) to border regions of the state, he was captured by a statue he had introduced and died being torn into pieces by chariots. Similarly, Han Fei would end up being poisoned by his envious former classmate Li Si, who in turn would be killed under a statute he had introduced by the aggressive and violent Second Qin Emperor that he had helped to take the throne.

As recorded in the Shiji and Book of Han, the Han dynasty took over the governmental institutions of the Qin dynasty almost unchanged,[5]^: 105 but in its early decades it was not a centralized state, parcelling out the country to a number of relatives, who as vassal kings who ruled with full authority.[5]^: 107 The reputation of the Fajia suffered from association with the former Qin dynasty. Sima Tan, though hailing the Fa "school" for "honouring rulers and derogating subjects, and clearly distinguishing offices so that no one can overstep [his responsibilities]", criticized the Legalist approach as "a one-time policy that could not be constantly applied".[238] Though different philosophically, the pairing of figures like Shen Buhai and Shang Yang along with Han Fei became common in the early Han dynasty, Sima Tan glossing the three as Fa Jia and his son as adherents of "xing ming" ("performance and title").[5]^: 90[239]

The syncretic Han Dynasty text, the Huainanzi writes that

On behalf of the Ch'in, Lord Shang instituted the mutual guarantee laws, and the hundred surnames were resentful. On behalf of Ch'u, Wu Ch'i issued an order to reduce the nobility and their emoluments, and the meritorious ministers revolted. Lord Shang, in establishing laws, and Wu Ch'i, in employing the army, were the best in the world. But Lord Shang's laws [eventually] caused the loss of Ch'in for he was perspicacious about the traces of the brush and knife, but did not know the foundation of order and disorder. Wu Ch'i, on account of the military, weakened Ch'u. He was well practiced in such military affairs as deploying formations, but did not know the balance of authority involved in court warfare.[240]

Despite the fall of the Qin dynasty, the administration and political theory developed during the formative Warring States period would still influence every dynasty thereafter, as well as the Confucian philosophy that underlay Chinese political and juridical institutions.[241] The influence of the Fajia on Han Confucianism is very apparent, adopting Han Fei's emphasis of a supreme ruler and authoritarian system rather than Mencius's devaluation thereof, or Xun Kuang's emphasis on the Tao.[242]

Shen Buhai's book appears to have been widely studied at the beginning of the Han era, and is listed along with the Book of Lord Shang in the Book of Han.[19][20]^: 35 As protégé of a Han Dynasty Commandant of Justice that had studied under Li Si, Jia Yi was a student of Shen Buhai through them.[243] His writings blame the fall of the Qin dynasty simply on the education of the second emperor,[244] and he would draw up elaborate plans for reorganizing the bureaucracy, which Emperor Wen of Han put into effect.

Shen Buhai never attempts to articulate natural or ethical foundations for his Fa (administrative method), nor does he provide any metaphysical grounds for his method of appointment (later termed "xing-ming"),[245][246] but later texts do. The Huang-Lao work Boshu grounds fa and xing-ming in the Taoist Dao.[245]

The Discourses on Salt and Iron's Lord Grand Secretary uses Shang Yang in his argument against the dispersion of the people, stating that "a Sage cannot order things as he wishes in an age of anarchy". He recalls Lord Shang's chancellery as firm in establishing laws and creating orderly government and education, resulting in profit and victory in every battle.[247] Although Confucianism was promoted by the new emperors, the government continued to be run by Legalists. Emperor Wu of Han (140–87 BC) barred Legalist scholars from official positions and established a university for the study of the Confucian classics,[248] but his policies and his most trusted advisers were Legalist.[249] Michael Loewe called the reign of Emperor Wu the "high point" of Modernist (classically justified Legalist) policies, looking back to "adapt ideas from the pre-Han period".[250] An official ideology cloaking Legalist practice with Confucian rhetoric would endure throughout the imperial period, a tradition commonly described as wàirú nèifǎ (Chinese: 外儒內法; lit. 'exteriorly Confucian, interiorly Legalist').[251]

It became commonplace to adapt the theories associated with the Fajia by justifying them using the classics, or combining them with the notion of the "way" or "pattern of the cosmos" ("The Way gave birth to law" Huangdi Sijing). Some scholars "mourn" the lack of pure examples of Taoism, Confucianism and Legalism in the Han dynasty more generally.[252] Han sources would nonetheless come to "treat Legalism as an alternative to the methods of the Classicists".[253] During the decay of the Han Dynasty, many scholars again took up an interest in Legalism, Taoism and even Mohism,[254] and a number of Confucians took up "Legalist" methods to combat the growing disregard for law.[123]

The Shiji records Li Si as repeatedly recommending "supervising and holding responsible", which he attributed to Shen Buhai.[5]^: 83 A stele set up by Qin Shi Huang memorializes him as a sage that, taking charge of the government, established Xing-Ming.[255][5]^{: 105, 112, 114}

In the early Han dynasty, Sima Tan's Taoist syncretism almost unmistakably uses the same sort of technique as Shen Buhai, saying:

When the congregation of ministers has assembled, the ruler lets each do as he will (zi ming). If result coincides with claim, this is known as 'upright'; if it does not, this is known as 'hollow'.[256]

The Huang–Lao text Jing fa says

The right way to understand all these (things) is to remain in a state of [vacuity,] formlessness and non-being. Only if one remains in such a state, may he thereby know that (all things) necessarily possess their forms and names as soon as they come into existence, even though they are as small as autumn down. As soon as forms and names are established, the distinction between black and white becomes manifest ... there will be no way to escape from them without a trace or to hide them from regulation ... [all things] will correct themselves.[257]

The Shiji states that Emperor Wen of Han was "basically fond of Xing-Ming". Jia Yi advised Wen to teach his heir to use Shen Buhai's method, so as to be able to "supervise the functions of the many officials and understand the usages of government". Pressure groups saw Jia Yi's dismissal, but was brought back to criticize the government. Two advisors to Wen's heir, Emperor Jing of Han were students of Xing-Ming, one passing the highest grade of examination, and admonished Jing for not using it on the feudal lords.[258][5]^{: 87, 103, 106–107, 115}[259]

By the time of the civil service examination was put into place, Confucian influence saw outright discussion of Shen Buhai banned. Xing-Ming is not discussed by Imperial University's promoter, the famous Confucian Dong Zhongshu. However, the Emperor under which it was founded, Emperor Wu of Han, was both familiar with and favorable to Legalist ideas, and the civil service examination did not come into existence until its support by Gongsun Hong, who did write a book on Xing-Ming.[5]^{: 86–87, 115} The Emperor Xuan of Han was still said by Liu Xiang to have been fond of reading Shen Buhai, using Xing-Ming to control his subordinates and devoting much time to legal cases.[5]^: 87[260][261]

Regarded as being in opposition to Confucians, as early as the Eastern Han its full and original meaning would be forgotten. Yet the writings of Dong Zhongshu discuss personnel testing and control in a manner sometimes hardly distinguishable from the Han Feizi. Like Shen Buhai, he dissuades against reliance upon punishments. As Confucianism ascended the term disappeared, but appears again in later dynasties.[5]^: 80, 90[162][152][262]

The Yongzheng Emperor of the Qing dynasty was also said to "xunming zishe", or "demand performance in accordance with title", a near-verbatim usage of the Han Feizi.[5]^: 89

The Records of the Three Kingdoms describes Cao Cao as a hero who "devised and implemented strategies, lorded the world over, wielded skillfully the law and political technique of Shen Buhai and Shang Yang, and unified the ingenious strategies of Han Fei".[175] Zhuge Liang also attached great importance to the works of Shen Buhai and Han Fei.[263][5]^: 112 The tendency toward Legalism is apparent in intellectual circles toward the end of the Han dynasty, and would be reinforced by Cao Wei. Dispossessed peasants were organized into paramilitary agricultural colonies to increase food production for the army, and penal legislation increased. These policies would be followed by the Northern Wei.[264]

Emperor Wen of Sui is recorded as having withdrawn his favour from the Confucians, giving it to "the group advocating Xing-Ming and authoritarian government".[5]^: 112 But Wen might be said to have already been steeped in a Legalist tradition followed by the aristocratic institutions of the northern dynasties, who concerned themselves with functional organization and social hierarchy. The Sui dynasty and Tang dynasty were largely based upon the Western Wei and Northern Zhou, refining pre-existing institutions and taking measures against the aristocracy.[265]

Quoting Arthur Wright, Author Hengy Chye Kiang calls the Sui dynasty a "strong autocratic power with a penchant for Legalist philosophy", and its prime minister Gao Jiong "a man of practical statecraft" recalling the great Legalist statesmen.[265][266] His influence saw the replacement of Confucians with officials of "Legalist" outlook favoring centralization.[265]

Under Legalist influence, Li Gou and Wang Anshi emphasised seeking profit for the people.[267] Deng Guangming argued that Wang Anshi was influenced by Warring States-era Legalism, with his emphasis on "enriching the state and strengthening the army" and Legalist ideas of law.[268] His baojia system which survived until the end of Imperial China has been described as a Legalist device.[269]

Li Shanchang (1314–1390), a founding Prime Minister of the Ming dynasty, studied Chinese Legalism. It is said that Li was the Emperor Hongwu's closest comrade during the war, and greatest contributor to his ultimate victory and thus establishment of the Ming Dynasty.[270] Deeply trusted by the Emperor,[271] Hongwu consulted Li on institutional matters.[272] Li planned the organization of the "six ministries" and shared in the drafting of a new law code. He established salt and tea monopolies based on Yuan institutions, eliminated corruption, restored minted currency, opened iron foundries, and instituted fish taxes. It is said that revenues were sufficient, yet the people were not oppressed.[273] Most of his other activities seem to have supported Hongwu Emperor's firm control of his regime. Mainly responsible for ferreting out disloyalty and factionalism among military officers, he used a reward and punishment system reminiscent of the Han Feizi, and may have had a kind of secret police in his service. At times he had charge of all civil and military officials in Nanking.[273][274]

In 1572 Zhang Juzheng, a legalistic, prime-minister like figure of the Ming Dynasty, had the young emperor of the time issue a warning edict against China's bureaucracy with the reference that they had abandoned the public interest for their own private interests. It reads: "From now on, you will be pure in your hearts and scrupulous in your work. You will not harbor private designs and deceive your sovereign ... You will not complicate debates and disconcert the government." It suggests that good government will prevail as long as top ministers were resolute in administration of the empire and minor officials were selflessly devoted to the public good. It is said that the officials became "very guarded and circumspect" following its release. His "On Equalizing Taxes and Succoring the People" postulated that the partiality of local officials toward powerful local interests was responsible for abuses in tax collection, hurting both the common people and the Ming state.[275]

Zhang Juzheng wrote that "it is not difficult to erect laws, but it is difficult to see they are enforced". His Regulation for Evaluating Achievements (kao cheng fa) assigned time limits for following government directives and made officials responsible for any lapses, enabling Zhang to monitor bureaucratic efficiency and direct a more centralized administration. That the rules were not ignored is a testament to his basic success.[276]

In the midst of the decline of the Qing dynasty in the late-19th century, Confucianism turned towards practicality (the School of Practical Statecraft, substantial learning). For some reformist scholars the focus on Confucianism was eroded in favour of Legalist principles of bian-fa (state reform), fu-qiang (state wealth and power) and even shang-zhan (economic warfare). Albert Feuerwerker argues that this Legalist raison d'etat ultimately was connected to the reform proposals of the 1890s, such as the Hundred Days Reform, and thence the New Policies of the early twentieth century. Western science was integrated into the Confucian worldview as an interpretation and application of Confucian principles. Shang Yang's slogan of "rich country, strong army" was also reinvoked in nineteenth century Japan as a "formal ideological foundation of industrial and technological development".[24]

Legalism was partly rehabilitated in the twentieth century by new generations of intellectuals. One, Mai Menghua (1874–1915), promulgated interest in Shang Yang's thought, comparing Shang Yang's view of history with the evolutionary ideas of Western theorists. The New Culture Movement leader, Hu Shi (1891–1962), hailed Han Fei and Li Si for their "brave spirit of opposing those who 'do not make the present into their teacher but learn from the past'".

Kuomintang leader Hu Hanmin (1879–1936) wrote the preface to a new edition of the Book of Lord Shang.[277] Because the Fajia ignored differences among subjects,[7]^: 15 early twentieth century Chinese scholarship often viewed it within the context of Western "rule of law".[14] One 1922 article, "The Antiquity of Chinese Law", attributes three legal theories to Han Fei, and referred to him as a "jurist".[40] From the 1920s on it was viewed as being in a historical struggle with the Confucian "rule of men".[7]^: 15

The early Mao Zedong has been described as a "dyed-in-the-wool" Legalist or "Lord Shang-style 'sage ruler', who defined the law according to revolutionary needs".[278] Communist intellectuals used the Fajia in their criticism of Confucianism, describing the conflict between the two as class struggle.[279] In 1950, the PRC combined law with campaigns against political enemies,[280] and appeals to the Fajia for solutions became common after the Great Leap Forward.[131] Fazhi, another historical term for "Legalism", would be used to refer to both socialist legality and Western rule of law. Still contrasted with renzhi (or rule of persons), most Chinese wanted to see it implemented in China.[281]

In "Globalization and State Transformation in China" (2004), a work included in Cambridge's Asia-Pacific studies, Yongnian Zheng invokes Chinese Legalism as a modern basis in a contrasting of Chinese rule by law with the Western rule of law, although with a "bureaucratic ethos" of Soviet influence from the 1970s.

Zheng references Richard Baum, differentiating China's rule by law as an instrument of state power, enabling the state to "rely on the gentry, family heads, and village elders to enforce local customs". This power was "transferred to the courts" in the more pluralistic West, and is contrasted as being intended to act as a delicately balanced "shield" against arbitrary state power. Sinologist Edward Epstein viewed law in China as still operating in the former vein, using rule by law to "uphold the socialist political order and perpetuate party domination."

However, although lacking rule of law proper, rule of law became a major subject and in the 3rd Plenary Session of the 11th Central Committee of the Chinese Communist Party in 1978, and subsequent major sociopolitical aim. The congress proposed the sixteen-word formula, "you fa ke yi, you fa bi yi, zha fa bi yan, we bi jiu", or "there must be laws (fa) for people to follow, these laws (fa) must be observed, their enforcement must be strict, and law-breakers must be dealt with." The development of the legal system, and the development of democracy, were considered almost interchangeable, with law systematizing and defending democracy. On this, Zheng quotes Deng Xiaoping: "Democracy has to be institutionalized and written into law so as to make sure that institutions and laws do not change whenever the leadership changes or whenever the leaders change their views."

Zheng considers the Chinese leadership of the 1980s and early 1990s to have "given the highest priority" to "building a legal system", and "vigorously pursuing" a "legal state" as a "new and effective way of governance". With efforts to establish rule of law after the mid-1990s, being set up as a goal in the 15th National Congress of the Chinese Communist Party, the growth of law might be said to outpace that of the Chinese economy.[282]

Two decades of reform, the Soviet Union's collapse and a financial crisis in the 1990s only served to increase the relevance of the rule of law, and the 1999 constitution was amended to "provide for the establishment of a socialist rule-of-law state", aimed at increasing professionalism in the justice system. Signs and flyers urged citizens to uphold the rule of law. In the following years, figures like Pan Wei, a prominent Beijing political scientist, would advocate for a consultative rule of law with a redefined role for the party and limited freedoms for speech, press, assembly and association.[283]

Xingzhong Yu, Professor at Cornell University, describes the PRC through a framework of "State Legalism",[284] and "Legalist" discourse is seeing a resurgence during the leadership of Xi Jinping, who is the General Secretary of the Chinese Communist Party, with journalists reporting on his fondness for the Chinese classics, alongside Confucianism, including Legalist writers and in particular Han Fei, both of which Xi sees as relevant.[285][286][287] Han Fei gained new prominence with favourable citations. One sentence of Han Fei's that Xi quoted appeared thousands of times in official Chinese media at the local, provincial, and national levels.[288] A key phrase of Xi's reforms is "govern the state according to law" (simplified Chinese: 依法治国; traditional Chinese: 依法治國; pinyin: yī fǎ zhì guó), although focusing on enforcing discipline on party and government officials first.[32]

In 1939 Arthur Waley contrasted the Fajia as "Realists": the Realists, he says, largely ignored the individual, holding that the object of any society is to dominate other societies.[36] In this vein, in his 1989 book "Disputers of the Tao" Angus Charles Graham titled his "Legalist" chapter "Legalism: an Amoral Science of Statecraft", sketching the fundamentals of an "amoral science" in Chinese thought largely based on the Han Feizi, consisting of "adapting institutions to changing situations and overruling precedent where necessary; concentrating power in the hands of the ruler; and, above all, maintaining control of the factious bureaucracy".[51]^: 267[289]

In 2003, Ross Terrill writes that "Chinese Legalism is as Western as Thomas Hobbes, as modern as Hu Jintao. It speaks the universal and timeless language of law and order. The past does not matter, state power is to be maximized, politics has nothing to do with morality, intellectual endeavour is suspect, violence is indispensable, and little is to be expected from the rank and file except an appreciation of force." He calls Legalism the "iron scaffolding of the Chinese Empire", but emphasizes the marriage between Legalism and Confucianism.[290]

In 2005, Chinese law expert Randall Peerenboom compares Han Fei with the accepted standards of legal positivism, and concludes that he is a legal positivist. Establishing the ruler as the ultimate authority over the law, he also "shares the belief that morality and the law need not coincide".[291]

In China the same year, Liang Zhiping theorized that law initially emerged in China as an instrument by which a single clan exercised control over rival clans.[292] In the earlier Spring and Autumn period, a Qin king is recorded as having memorialized on punishment as a ritual function benefiting the people, saying, "I am the little son: respectfully, respectfully I obey and adhere to the shining virtuous power, brightly spread the clear punishments, gravely and reverentially perform my sacrifices to receive manifold blessings. I regulate and harmonize myriad people, gravely from early morning to evening, valorous, valorous, awesome, awesome – the myriad clans are truly disciplined! I completely shield the hundred nobles and the hereditary officers. Staunch, staunch in my civilizing and martial [power], I calm and silence those who do not come to the court [audience]. I mollify and order the hundred states to have them strictly serve the Qin."[293]

The Fajia are often still compared in the Western world to Machiavellianism.[294][3]^: 59[34]^: 308 The Oxford Handbook of World Philosophy paints the Fajia as Realists, stating that "What linked these men is that all were theorists or practitioners of a realistic amoral brand of statecraft aimed at consolidating and strengthening the power and wealth of the state and its autocratic ruler. Their thought was realistic in being premised on what they took to be brute facts about how people actually behave ... It was amoral in that they were utterly unconcerned with whether the institutions and methods they advocated were morally justified."[3]^: 59 Yuri Pines (2014) terms them as "political realists who sought to attain a 'rich state and a powerful army'(Shang Yang) and to ensure domestic stability."[295]