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Political thought in ancient China

 

Political thought in ancient China

By the second the Chinese developed a "vast, complex and highly centralized bureaucratic state",[1] with a long-stable realm in the form of the [3] influencing western administrative practices not later than the twelfth century and playing a significant role in the development of the modern state, including use of the examination. The later Song dynasty would be the first government to nationally issue banknotes or true paper money, and also saw the first known use of gunpowder, as well as the first discernment of true north using a compass.

The Chinese state was derived from what may be termed as "Chinese administrative philosophy". Its primary aspects formed in the Warring States period, that being the moralist Confucianism, and a later often masked and unspoken Realism,[4] often termed "Legalism" following it's synthesis in the Han Feizi[5] and modernly compared, if not favourably with Machiavelli.[6][7][8][9] Both played important roles in advocating for a unified China.[10]

Contents

  • Introduction 1
    • Historical overview 1.1
      • Development 1.1.1
    • Descriptions of a paradigm 1.2
    • Han Fei Synthesis 1.3
  • Early developments 2
    • (1600 BC) Shang pre-history 2.1
    • (1046 BC) Zhou origins 2.2
      • Handles of the state 2.2.1
      • Traditional law 2.2.2
  • Central decay and feudal hegemony 3
    • Emergence of restorative schools 3.1
      • (685 BC) Guan Zhong and "realistic Confucianism" 3.1.1
  • Administrative expansion and feudal disintegration 4
    • (497 BCE) Confucius 4.1
      • Rectification of Names 4.1.1
    • Cosmological developments 4.2
      • (470-391 BCE) Mohist utilitarianism and meritocracy 4.2.1
  • Warring States period 5
    • "Chinese Legalism" 5.1
    • (356 BCE) Shang Yang and the advent of Qin legalism 5.2
      • Rule by Law 5.2.1
        • Han Fei considerations 5.2.1.1
    • (351 BCE) Shen Buhai: Tact and Ministerial Management 5.3
    • (369-286 BCE) Zhuang Zhou 5.4
    • (319 BCE) Mencius 5.5
    • (300 BCE) Shen Dao and Power 5.6
    • Xunzi 5.7
  • Fall and reflections 6
  • Legacy and continuity 7
    • Han dynasty 7.1
    • Modern revival 7.2
  • References 8
  • Sources 9
  • External links 10

Introduction

In Asiatic civilization all the the cultural divisions are still embeded in the total stream of life, so that one cannot speak about art as if it vere detatched from religion; about religion as thought it were detached from speculative thought; about this thought as if it were detatched from mystic feelings; about these feelings as if they were detached from moral and political wisdom.

Kroner, Culture and Faith[11]
The syncretism of Neo-Confucian figures like Zhou Dunyi, in drawing on diverse sources and representing a totalizing synthesis of cosmos, humanity, conduct, ethic, and nature, is commonplace in Chinese philosophy more generally.

The administrative thought of the Chinese was not a formal "school", but a body assessing common problems. Holding single-mindedness between knowledge, action, nature (or heaven, or just circumstances), and administration as their aim, Chinese thought more generally may be considered syncretic. This syncretism aims to express smaller daos ("ways"), which can be social or natural, more comprehensively or universally, often with an idealized observer such as the sage or heaven. Confucian daos were broadly expressed as humanist.[12] More than any particular distinction, adherents considered their ideology to be the one that ought be adopted by the state because they considered their "way" to be higher or more universal in perspective. The defining Zhou ideation, heaven, represents represents such a unity.

Pre-Han ideologies would make some comparison between each other during the turmoil of the Warring States period, but only really tried to demarcate themselves as distinct with the later arrival of Buddhism. Early Spring and Autumn reformers often related with morality, and administration with it. Warring States "Legalists" Li Si and Han Fei Zi were taught by heterodox Confucian Xunzi[13] who, rejecting the innate human goodness or morality of Mencius, emphasized the importance of education and ritual.[14] Translator Allyn Rickett writes: "all early Chinese political thinkers were basically committed to a reesteablishment of the golden age of the past as early Zhou propoganda described it."[15] In trying to advance innovative solutions, later reformers like Qin's Shang Yang would disavow the usefulness of the past. But though aiming at a new dynasty Qin still practised Zhou ritual and considered itself a rehabilitater as such.[16][17]

Inspired by the Zhou-innovated Mandate of Heaven, some, like the Confucians, would come to see the decay as one pertaining to "virtue", and advocate its practice among the disparate lords. The later Mohists would advocate a universal fraternity. Looking back to a period of long, united stability, none of the major schools, the Chinese political body itself, or the Chinese more generally, viewed the political fragmentation as a positive development. Believing that a sage or other restoration of order would result in the supremacy of their ideology (or state), neither did any really believe in disputation.[18] John Dewey described the influence of Confucianism and Daoism as merging “to create a definite contempt for politics and an aversion to government as the West understands the term.”[19]

In 1960 Thomé H. Fang said that "Three major philosophical traditions in classical antiquity - Taoism, Confucianism and Moism - joined forces contemporaneously with one another in giving expression to the pervading unity of man and nature..."[20] But a developing political methodology, coming to fruition in the Warring States period, would also ultimately win out as China's administrative background, though not official ideology, because the naturalism of Taoism and the benevolence and virtue of Confucianism lacked sufficiently active program for political reform based upon the present. Warring States period reformers, later termed Legalists, criticized reliance upon the past[21] while offering offering modern, rationalized political formulas.[22] For them, the only "Way" was that of the present. Pre-Qin Confucianism, and Mohism with it, also advocated political autonomy for their followers, something which ran counter to any attempts to actually run an administration. Though post-Qin Confucianism was somewhat more integrated, it still often ran counter to the monarchy, public administration and military capability.[23]

Historical overview

Starting in the Spring and Autumn period (771-476/403 BCE), in addition to Confucian reformers a trend of "realistic" reformers were taken on to advance the material interest of their respective states, with the Qin state founding what is commonly thought of as the first Chinese Empire, the Qin dynasty, in 221 BCE, ending China's Warring States period. Late Qin reformers would adopt an openly avowed, expansive "rule by law",[24] founding the Chinese Imperial State. Both would remain a matter of contention until the era of modern national identity and reform, following such impetus as the nomad dynasties and the Opium Wars.[25] As with later dynasties, though professing hatred thereof, the Qin administration would be inherited by the Han dynasty almost intact as necessary in running the large and complex territory, but with a relaxation of penalties and official ideology of, alternatively, Taoism or Confucianism.

With the ascendancy and toppling of the Qin dynasty, whose legalistic administration and military capability often developed at the expense of the traditional order, "fa-jia" (translated as "school of law" or Legalism but actually having a broader possible semantic range) would develop as the term for the inner political-administrative methodology of the Chinese[26] having specific connotations. Most reformers of the period took little interest in the schools per se, but Qin's reformer Shang Yang was quite explicitly anti-Confucian, and famous synthesizer Han Fei not much less.[27] Though Chinese Emperors would make use such methodologies throughout history, with the historical dominance of the Confucians, who emphasized a philosophy of filial piety and rule by virtue, politic leaning toward the administrative sciences would often be obscured under the term Legalism, sometimes only gaining ear in times of crisis. But the political theory developed during that formative era would still influence every dynasty thereafter.[28]

Development

The sage holds oneness in hand and rests in tranquillity, letting names appoint themselves to tasks and affairs settle themselves. If he does not show off his sagacity, the inferiors will reveal their earnestness and uprightness. He then appoints them to office in accordance with their words, and thus lets them choose their tasks. He confers upon them powers in accordance with their needs and thus lets them raise their ranks.

Han Feizi "Chapter VIII. Wielding the Sceptre"[29]

Chinese mythology of its founding Xia dynasty held that it's first human ruler, Yao passed his rule to minister Shun rather than to his son, who was considered unworthy to receive the Empire.[30] The later Zhou dynasty clan would monopolize positions of importance, but had always given importance to the role of ministers alongside the king.[31] Following the decay of the Zhou line and culmination of administration in Warring State's period a Confucianistic officialdom would replace the feudal class in the Han dynasty.

Befitting the values of Zhou dynasty, early political compilations like that of the Guanzi emphasized orders, "feudalistic" hierarchy and displays of virtue, allowing it categorization under the "shi", that is, the "power" or "charisma" "school". Later philosophers of the chaotic and regicidal Warring States period would hold that ruler and the state would be safer if he avoided acting, and thus exposing his own wisdom, which might allow him to be exploited. Generally emphasizing the ruler's power and technique, later reformers like Shang Yang and Han Fei held the ruler to be the source of law, and may thus be termed absolutist,[32][33][34] with the caveat the philosophers advised the ruler generally remain passive following the establishment of order. Not intending to restrict his power as such,[35] they nonetheless considered him safer and more powerful acting sparingly, in secrecy.[36]

Shen Buhai limited the ruler's role to that of a judge of ministers, simply comparing the statements of ministers with the results of their programs to determine their quality. Shen Dao incorporated the use of protocol to promote or penalize ministers. Only acting on protocol, no one could make unreasonable demands of him.[37] Thus, the ruler would simply be a power holding safeguard,[38] if needing to do even that. A couple of the Zhou states would to some extent succeed in translating previous emphasis on orders or protocol into rule by law, but it would take the reforms of Qin's Shang Yang and the Qin conquests to bring China under it.

For Han Fei, late Warring States period synthesizer, the ruler need only receive legal proposals from his ministers (to preven it's co-option). He does not judge them or the law himself, the development of rule by law allowing the law to run the country, and it's administration, through protocol and statistic, to promote or penalize ministers, soldiers and labourers according to the results of their proposals, and who in any case could be expected to be more capable than the ruler in their respective fields. With a harsh and absolutist implementation of rule by law, in its final years, the Qin Empire ran into some problems, but was in its development was very successful.

Descriptions of a paradigm

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.

Han Fei Zi "Chapter V. The Tao of the Sovereign"[39]

With the success of Qin's rule by law, by the late end of the period synthesizer Han Fei of Han combined the political method of his predecessors in the Han Fei Zi, using the Qin emphasis of law as a base.[40] In an early pro-Taoist, Han dynasty comparison of ideologies, pro-feudal historians would coin the term Fa-Jia, defining much in the way of pre-Han administrative developments as a Warring States period "school." In reality most such reformers took little interest in the moral and philosophical questions of the schools, and there was no "school" as such (other than the multifarious Jixia Academy). Reformer's rhetoric was formulated for their patrons, not literary distribution.

As far as one can tell, fa-jia (i.e., the "legalist school") was invented by Sima Tan in his essay, “The Essential Implications of the Six Houses of Thought." Sima Tan sketched what he called the six main schools of pre-imperial philosophy, aiming to show how his group, called daojia (i.e. school of dao) incorporated the strengths of the others without succumbing their weaknesses. Sima Tan's definition, perhaps accurate for Qin's Shang Yang reads that they "are strict and have little kindness, but their alignment of the 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 fa."[41]

University of Pennsylvania's Paul R. Goldin points out that "the translation 'legalism' (supposes) that fa only means “law.” But this is a grave error... it covers a much larger semantic range. The originating Mohist Canons explain fa as instruments, including 'such three things as ideas, compasses, and circles'. Even in imperial China, fa tended to mean something more like 'government program' or 'institution' than 'law'—as in, for example, the failed Song Dynasty 'Green Sprouts Policy', Wang Anshi’s 王安石 (1021–1086) attempt to establish a government credit bureau." Han Fei says: "an enlightened ruler employs fa to pick his men; he does not select them himself. He employs fa to weigh their merit; he does not fathom it himself." This being said, in its more general use, Fa is broader than any ordinary understanding of the word 'law'." Referencing Jens Østergård Petersen, Goldin also points out that jia may simply mean specialist, the modern usage of the character, rather than "school".[41]

Famous Sinologists like Creel considered Legalism an odd term for foundational philosophers of similar style whose methods make little to no mention of law as such (like Shen Buhai), but whose contributions might be considered equally important, and uses Realist in its place as an abstract term to reference figures or philosophy of Chinese history with a politically realistic, rather than only idealist Confucian bent. As Allyn Rickett in Guanzi, says, that term "Legalist" has been used as descriptive of the writings and policies of earlier Spring and Autumn period (771-476 BCE) reformers even where "realist" or "realistic Confucian" might make a better appellation, but Legalism is still used more.[42][43][44][45] Consisting of methodologies for the ruler, in the west "Legalist" philosophers have often been compared with Machiavelli[46] The spirit of such content may be readily recognized by Western viewers through the Warring States period's Art of War.[25] In the broader Confucian-dominated history most realistic political thinkers could naturally be expected to also be Confucian, but in the foundational Warring States period some such texts might be considered be almost purely Realpolitikal.[47]

In his book Three Ways of Thought in Ancient China Arthur Waley describes "Realism", "expounded by Han Fei Tzu", as finding close parallels with modern Totalitarianism,[48] though others consider such usages anachronistic.

Han Fei Synthesis

There is more than one way to govern the world and there is no necessity to imitate antiquity, in order to take appropriate measures for the state... One should, in one's plans, be directed by the needs of the times - I have no doubts about it.

The Book of Lord Shang "Reform of the Law"[49]

When adopting words and observing deeds, if someone does not take function and utility for mark and target, he will be doing the same as wild shooting, however profound the words may be and however thorough the deeds may be.

Han Fei Zi "Chapter XLI. Inquiring into the Origin of Dialectic"[50]

What may be termed the administrative methodology of the Chinese is a syncretism of lengthy breadth and origin. Though the works of the "Legalists" achieve a high level of abstraction,[51] their thought may appear contradictory if thought of as a doctrine, rather than situational methods.[52] Ultimately, as the first chapter of Book of Lord Shang says, there is more than one method (fǎ) to govern the world, and one should, in one's plans, be directed by the needs of the times. Through late Warring States synthesizer Han Fei, the study of philosophy like that of Shen Pu-hai would come to define political method for post-Qin Emperors.[53] Shen Pu-hai's political technique charges the ruler engage in passive observation to determine facts rather than take on too much himself. Sinologist Creel writes: "If one wishes to exaggerate, it would no doubt be possible to translate (foundational realist) Shen Buhai's term Shu, or technique, as 'science', and argue that Pu-hai was the first political scientist," though Creel does "not care to go this far".[54]

Han Fei was not the first "realistic" political philosopher of the Chinese, (Han Fei, the most famous "Legalist" scholar, contemporary of and most admired by the First Qin Emperor, Qin Shi Huangdi), but the Han Feizi is generally regarded as the most sophisticated exposition of "Legalist" theory.[55] In Han Fei's synthesis, the ruler monopolized power to prevent civil war and abuse by the feudal lords, but otherwise allowed ministers, soldiers and labourers rank and office, reward or penalty, according to merit and the comparison of their statements with the results of their proposed projects. Intending the establishment of a system that needed little interference from the ruler, more "legalistic" philosophers held that this could be handled according to procedure and commission.[56] In China, the old Realpolitik is viewed today as having worked to advance China's historically unitary state beyond feudalism.

Stressing that ministers and other officials too often abused their positions and sought favours from foreign powers, Han Fei urged rulers to observe that ministers' accomplishments were neither greater than nor inferior to their undertaking, handling them by a combination of favours and penalties, that being "the two handles."[57] Using his monopoly, the wise ruler could extend courtesy to those beneath him and indulge the advice of ministers without danger to himself or the state. Basing himself upon the administrative successes and of his own Han state and borrowing the Qin's innovation of law, Fei depicts his work as synthesizing in the Han Feizi (book) the administrative methodologies particular to his predecessors for practice under the aegis of the figure of a watchful sovereign autocrat:[32] In reality, any of the given figures were synthesizers themselves.[41]

Han state Candle Holder
  1. Shi (Chinese: 势; pinyin: shì; literally "legitimacy, power or charisma"): Reflecting the preceding Zhou Dynasty's stability and means, this masculine character represents force or military strength, the appearances or influence of the ruler ("virtue", or fame), and the state's situation or trend.[58] In the philosophy of Shen Dao and his contemporaries, the establishment of order and the Sovereign's restraining hold on the state generates the stability necessary for any rule at all, monopolizing authority in-order to prevent its abuse by feudal magnates.[38] In the Book of Lord Shang, a strong inherited position supports even an ineffectual ruler, while a competent ruler without position effects nothing.[59] That being done, using his position the ruler could make use of intelligence like measurement and statistic to grant reward or penalty impartially. Chinese references to the square and compass actually go back to mythology, like that of Fuxi and Nuwa.
  2. Shu (Chinese: 术; pinyin: shù; literally "method, tactic or art"): Withdrawing from affairs except to survey the course of ministers, the ruler following the philosophy of Shen Buhai uses "technique", or special tactics or "secrets" to ensure that others do not gain control of the state, and obscures their motivations. Shen Buhai's technique did not use threatening or force, law, reward or penalty, all of which may be unsuitable for the exercise of one man.[60] Under the later Han Fei, obscuration of motivations translates into law enacted as the proposed policies of the ministers, then observed for outcome. By such means no can subvert the state through sycophancy toward the ruler, but may only try to advance by heeding orders and performing meritoriously. Shu is the aspect of Chinese Realpolitik most frequently related with Taoism through one of its associates wu-wei, or non-active action.
  3. Fa (Chinese: 法; pinyin: fǎ; literally "law or principle"): Fa has a historically broader meaning than law, including standards and tools, which Shen Dao translated into administration by protocol. Shang Yang translated Fa into the use of laws to reward those who obey them and penalize accordingly those who do not, institutionalizing the standards set by the ruler and acting as a guarantor for actions taken. Late Warring States reformers advised the ruler to generally use, if not hide behind the legal system to control the state. If the law is applied effectively, even a weak ruler will be strong, effectively regenerating the preceding principles. In the development of administrative methodology, Han Fei credits Yang with Ding Fa (定法), or fixing the standards, which were to be written clearly, made public and applied throughout the state. All persons under the jurisdiction of the ruler were equal before the law, referred to as Yi Min (一民), or treating the people as one.[61]

Early developments

(1600 BC) Shang pre-history

A late Shang dynasty bronze ding vessel with taotie motif

The Shang dynasty arose in the North China plain ("Central Plain"). With the later Zhou Dynasty not having been significantly more successful militarily,[62] figures like Confucius never ventured beyond this territory and considered it's states as defining the limits Chinese civilization,[63] though the Chu state to the south would become a hegemonical actor and heart to ideological developments in Taoism.[64]

The terrain of China limited technological developments in agriculture, though with the acquisition of the south, would ultimately offer offer fertility much higher than that of Rome.[65] However, the severe climate of the north China plain required careful timing. Traditionally, the Chinese have taken painstaking efforts to use their environment efficiently, clustering houses tightly.[66] Through the king, Shang Imperial authorities declared when it was time to plant the crops, developing a calendar of 12 months of 30 days, adjusted from the older lunar calendar.

Though not being more developed in agricultural technology, the agriculture of the

  • "Chinese Legalism: Documentary Materials and Ancient Totalitarianism"
  • Legalist texts - Chinese Text Project (Chinese and English)]'
  • [4] - The Han Feizi
  • [5] - Book of Lord Shang
  • [6] - The Shenzit

External links

  • W. Allyn Rickett, Guanzi: Political, Economic, and Philosophical Essays from Early China
  • Creel, H.G. "Origins of Statecraft in China"
  • Creel, H.G. “The Totalitarianism of the Legalists.” Chinese Thought from Confucius to Mao Tsê-tung. Chicago: The University of Chicago Press, 1953.
  • Duyvendak, J.J.L., trans. The Book of Lord Shang: A Classic of the Chinese School of Law. London: Probsthain, 1928.
  • Graham, A.C., Disputers of the TAO: Philosophical Argument in Ancient China (Open Court 1993). ISBN 0-8126-9087-7
  • Shen, Pu-hai. “Appendix C: The Shen Pu-hai Fragments.” Shen Pu-hai: A Chinese Political Philosopher of the Fourth Century B.C. Translated by Herrlee G. Creel. Chicago: The University of Chicago Press, 1974.
  • Sima, Qian. Records of the Grand Historian, Qin Dynasty. Translated by Burton Watson. New York: Columbia University Press, 1993.
  • Schwartz, Benjamin I. The World of Thought in Ancient China. Cambridge, MA: The Belknap Press of Harvard University Press, 1985.
  • Watson, Burton, trans. Han Fei Tzu: Basic Writings. New York: Columbia University Press, 1964.
  • Yao, Xinzhong. Introduction to Confucianism (2000). ISBN 978-0-521-64312-2
  • Potter, Pittman, From Leninist Discipline to Socialist Legalism : Peng Zhen on Law and Political Authority in the PRC2 (2003). ISBN 978-0-8047-4500-0

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References

"According to a previous report by the International Business Times, this means divesting total, overarching disciplinary power from the central government, and allowing local courts to be supervised by local officials, establishing semi-independent courts to promote judicial independence and reduce interference by local party officials."[185]

   Comprehensively build a moderately prosperous society (全面建成小康社会)
   Comprehensively deepen reform (全面深化改革)
   Comprehensively govern the nation according to law (全面依法治国)
   Comprehensively strictly govern the Party (全面从严治党)[184]

On February 25, China's state media began the widespread rollout of President Xi Jinping's new ideological directive, the "Four Comprehensives."

Scholars say his Xi's new laws, referencing "rule of law", provides a firmer legal framework for civil society and foreign NGOs. By comparison, contemporary India, also faced with issues regarding NGOs, simply revoked the licenses of 8975 non-governmental organizations for accounting violations as being harmful to the economy.[180] Xi vowed to "overhaul the economy, promote social equality, and build a fairer, cleaner legal system."[181][182] Xi states: "To realize the goals [of ruling in accord with the law], [we] must uphold the leadership of the Chinese Communist Party, uphold the principle position of the people, uphold equality of all people before the law, uphold the combination of ruling the nation in accord with the law and ruling the nation with virtue (以德治国), upholding the [principle of] proceeding on the basis of China’s realities."[183]

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.[178] More critically, Jin Kai of The Diplomat writes, "The Chinese leadership does not indiscriminately copy existing theories from its ancient philosophies or the Western ideologies. Instead, the CCP consistently insists that all theories, institutions, and patterns should be weighed with regard to the real situation in China... Ryan Mitchell described Xi as a pragmatic legalist. In fact, pragmatism is a better way to describe on-going changes in both China’s political and diplomatic practices."[179]

As Communist ideology plays a less central role in the lives of the masses in the People's Republic of China, top political leaders of the Communist Party of the People's Republic of China such as Xi Jinping continue the rehabilitation of figures like Han Fei into the mainstream of Chinese thought alongside Confucianism, both of which Xi sees as relevant. “He who rules by virtue is like the North Star,” he said at a meeting of officials last year, quoting Confucius. “It maintains its place, and the multitude of stars pay homage.” In Shandong, the Birthplace of Conficus, he told scholars that while the West was suffering a “crisis of confidence,” the Communist Party had been “the loyal inheritor and promoter of China’s outstanding traditional culture.”[177]

Those termed as Legalists are referenced explicitly even in the modern era,[173] with Legalism and Confucianism having been a subject for contrast, debate and discussion by Chinese Communists. The term is now sometimes used by modern scholars to describe policy later than that of the Qin dynasty, such as that of the Han, Wei, Shu Han, or Sui Dynasties,[174][175][176] even while they themselves may not have self-identified with the term. Maoists criticized Confucianism, detaching Confucian ideology from the state, and use of the term as a descriptor has significantly broadened, and is no longer considered so taboo.

Modern revival

In the decay of the Han, reformers discussed return to methods, with Liu Bei modernly described, like the Chinese state, as inwardly Legalist while Confucian in appearance. Confucian values, and, during the Sui and Tang dynasty, Buddhist ideas, were used to sugarcoat the external face of the Imperial system's Legalist method. The Sui dynasty's policies during its efforts to reunify China might called "legalistic" and resemble the Qin in some ways, carrying out mass-labour projects in agriculture, said tendency being a likely inspiration for latter attempts at the same by Maoism. Political Taoism too made a temporary return in the Tang court alongside Buddhism. Like the Han with the Qin, the Tang government used the government structure left behind by the Sui dynasty, albeit with much reduced punishments

Emperor Wu of Han would establish Confucianism as an alternative to the feudalizing tendencies of the ideologically Taoistic court aligned with a very real semi-autonomous realm, one of whose more famous ideologians was accused of treason. Confucianism, advocating a "rule by virtue", was established as the remaining official ideology whose bureaucracy shunned "Legalism". "Legalist" philosophy, caterogrizd as having the aim of "wealth and power" would be generally considered less cultured than pursuit of the classics. Until the modern era open discussion of what might be termed the Realpolitik of the Chinese would be generally resigned to the past, other than in times of crisis; during the Qing's Taiping civil war, the writings Feng Guifen would convince the dynasty to establish its first modern shipyards.[25]

Though gradually courting the loyalty of a Confucian scholalrly clasw in support of the imperial system, before the adoption of Confucianism as an ideology, early Han Dynasty included "Legalist" rhetoric, that is, Realpoltik, together with Taoism as ideology termed Huang-Lao, often with differing priorities between the two. As in the Han Feizi, high ranking ministers often made realist references, such as to the handles. Such continued after the adoption of Confucianism though with more subtlety.[172]

The emperors who followed Liu Bang carefully chipped away at the nobility. In replacement of primogeniture, in 144 BCE, Emperor Xiao Jing decreed every lord will his lands in equal parts to every son.[171]

Han dynasty

The general trend of post-Qin Chinese dynasties was the adoption of Confucianism as the official ideology, but both ancient and modern observers of Chinese politics have argued that what would be called Legalism still played a major role in government, and though demonized together the Qin dynasty as at odds with Confucian ethics, the benign administrative developments needed in the government of a unified China would be overlooked. Qin Hui memorably glossed the reality of imperial China as "Confucian on the outside, but Legalist within" (儒表法里, p Rú biǎo, Fǎ lǐ).[170]

Marble statue of Emperor Cin Shihhuang

Legacy and continuity

But the Qin government's base rested on the innovation of law as overseen by central officials. Han Fei's philosophy also magnifies the importance of law and centralization. According to the Han's Grand Historian Sima Qian (c. 145–86 BCE), the First Qin Emperor hid himself from the rest of the world (perhaps due to a desire to attain immortality) and thus maintained a low profile. But he did not follow all of the Legalists’ advice on the role of the ruler, continuing this line to the point of not even interacting with his own ministers, leaving this to the Prime Minister, Li Si. Li subsequently altered the royal succession after the Emperor's death to enthrone an incompetent. In a certain sense following one of the philosophical premises for the purpose of law, this heir tried to cause the system to run itself by punishing bad news.

The Book of Lord Shang did not hold the principle of law as a suitable base for a large state, describing its application as having a shrinking effect. Yang likely did not envision the extent to which later reformers would attempt to make law a permanent feature if not revolutionary project; the book holds that matters benefiting from an overarching presence ought already be dealt with in the course of the state's development, attaining, as Taoism would say, a natural mode. Yang's book suggested post-conquest enfeoffment (as necessary), mutual responsibility, and decentralization down to the village level referring back to legal authority. The latter would exist in the form of systems like the baojia, though problematic when applied universally.

Conflict between the traditional aristocracy and the ministerial class, much of which came from the aristocracy, was characteristic of the period. But though desiring to achieve order through the universal application of law, Legalists like Shang Yang likely did not intend harm to their class; Yang was arguably an absolutist, merely considering law one tool among others.[169] The meritocratic officialdom was connected with a ranking system considered aristocratic, acquirable through the military.

It is impossible to compare them. Man, not eating for ten days, would die, and, wearing no clothes in the midst of great cold, would also die. As to which is more urgently needful to man, clothing or eating, it goes without saying that neither can be dispensed with, for both are means to nourish life. Now Shên Pu-hai spoke about the need of tact and Kung-sun Yang insisted on the use of law. Tact is the means whereby to create posts according to responsibilities, hold actual services accountable according to official titles, exercise the power over life and death, and examine the officials' abilities. It is what the lord of men has in his grip. Law includes mandates and ordinances that are manifest in the official bureaus, penalties that are definite in the mind of the people, rewards that are due to the careful observers of laws, and punishments that are inflicted on the offenders against orders. It is what the subjects and ministers take as model. If the ruler is tactless, delusion will come to the superior; if the subjects and ministers are lawless, disorder will appear among the inferiors. Thus, neither can be dispensed with: both are implements of emperors and kings.[168]

Han Fei wrote, regarding the differing methods of his predecessors,

The later Sima Tan, though hailing "fa jia" for “honoring 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”.[167]

Whether a return to the aristocratic distribution of the Zhou would have worked or not, the first Emperor believed it to be the cause of disintegration, and opted to maintain the unitarian, bureaucratic legal application over its area. The Han Dynasty did just such a redistribution, gradually parring it away through Realpolitik. Though lending itself to the development of a smaller state, incidences resultant of the rigid impersonality of the legal system mounted and resistance to it began soon after the Emperor's death. Chu openly flouted the laws. No alternative or admixture was secured before the fall of the dynasty.[166]

In their time, Qin and the tendency toward legalism were demonized by Confucian scholars for "dangerously lacking in Confucian scholars;"[162] later, because of conflict between Emperor

There is no ruler of men who can give order to his people for all time, nor is there a country in the world that has not known disorder. Raising virtuous and capable men is the cause of bringing order into the world, but it is also the cause of order becoming disorder.

Shang Jun Shu "Attention to Law"[131]

Fall and reflections

Witnessing the chaos surrounding the fall of the Zhou dynasty and success of the "Legalistic" Qin state, counter to Mencius's view that man is innately good Xunzi believed man's inborn tendencies were evil, but could be refined through education and ritual. Because of this, he is sometimes associated with Legalism. Though his focus is on Confucian ritual, like Shang Yang he believed that ethical norms had been invented to rectify mankind. Xunzi would be the teacher of Qin Chancellor Li Si and synthesizer Han Fei Zi.

Xunzi

Shang Yang emphasizes that the ability to bestow reward and penalty depended upon the material development of the state, and that of the security apparatus. In "Interdicts and Encouragements"[59] the Book of Lord Shang states that the correct method for obtaining knowledge for reward or penalty is power and figures, the obtaining of figures being dependent upon the power of things, such as measuring tools. Reward and penalty require consistency. If no measurement is mandatory, no figure is obtained. Yang emphasized that at the height of Shi, the need for rewards is minimized, and things are made fitting by expounding upon the system, or penalty. With a solid system one might accumulate capital even without having acquired any particular talent, who could pose their own problems.

In Shen Dao's context much of his philosophy still meant military despotism relating with a feudal aristocracy, as was the case earlier. But in this he applied the use of statistical analysis of the trends, context, and facts inorder to do so impartially. The ascertaining of such facts in congruence with the use of law and technique runs a common theme in Realist texts.

The reason why those who apportion horses use ce-lots, and those who apportion fields use gou-lots, is not that they take ce and gou-lots to be superior to human wisdom, but that one may eliminate private interest and stop resentment by these means. Thus it is said: 'When the great lord relies on fa and does not act personally, affairs are judged in accordance with fa.' The benefit of fa is that each person meets his reward or punishment according to his due, and there are no further expectations of the lord. Thus resentment does not arise and superiors and inferiors are in harmony."[41]

Shen Dao was referred to by the Confucian Xun Kuang as "beclouded by fa", but this is more fa in its pre-legal meaning of protocols and method than the expansive legal system of Shang Yang, and like Shen Buhai, Shen Dao deals more in the management of a bureaucracy. Shen Dao stated: "If the lord of men abandons fa and governs with his own person, then penalties and rewards, seizures and grants, will all emerge from the lord’s mind. If this is the case, then those who receive rewards, even if these are commensurate, will ceaselessly expect more; those who receive punishment, even if these are commensurate, will endlessly expect more lenient treatment. If the lord of men abandons fa and decides between lenient and harsh treatment on the basis of his own mind, then people will be rewarded differently for the same merit and punished differently for the same fault. Resentment arises from this.

Around 300 BC Shen Dao traveled to the city of Linzi (modern Zibo, Shandong) where became a member of the Jixia Academy. There he emphasized that the head of state was endowed with shi, the "mystery of authority", recognizing that the Emperor’s very figure brought legitimacy, but that it is the position of rulers that is powerful, not the rulers themselves. Shen Dao and later Han Fei wrote that the ruler alone should hold the powers of reward and penalty; if anyone freely exercised one or the other, they would usurp if not ruin the state for private benefit. Under the later Han Fei, these should not be executed except by the ruler's legal code.

The early kings did not rely on their strength but on their power (shi); they did not rely on their belief but on their figures. A floating seed, 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 you find by dropping a string. So 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. In the darkness of the night, even a Li Lou cannot see a great mountain forest, but in the clear morning light, with the brilliant sun, he can distinguish the flying birds above, and below he can see an autumn hair, for the vision of the eye is dependent on the power of the sun. When the highest condition of power (shi) is reached, things are arranged without a multitude of officials and are made fitting by expounding the system.

Shang Jun Shu, "Interdicts and Encouragements"[161]

(300 BCE) Shen Dao and Power

Like the Confucians before him, Mencius believed that that man's natural tendencies were good to begin with, but individual educative effort was needed to cultivate one's benevolence. Though believing that external controls alone could not sufficiently control society, Mencius held to Confucianism's promotion of class and social hierarchy as the source of order and stability in society. He extended the doctrine of the rectification of names to include questions of political legitimacy, defining unkingly behavior as alienating the people and ministers. Well designed language clarified reality and natural value.[160]

A little over a hundred sevent-five years after the proselytism of Confucius, Mencius defended what he saw as traditional Confucianism from Mozi and Yang Zhu.[155][156] Mencius only began to fully impact itself on the Chinese in the ninth century, as the animating canonical force for the ideas of Neo-Confucianism.[157] But though there were other Confucians in the fourth century, none exerted his permanence.[157] Honoured as the "second sage", some argue that he may have been even more influential upon Chinese statecraft than Confucius. In his book, Three Ways of Thought in Ancient China, Arthur Waley chose him, rather than Confucius, as the representative of the Confucian school,.[158] describing him, while intellectual, as appealing to the moral feelings at a time when morality was at stake.[159]

(319 BCE) Mencius

Wang Fuzhi speculated that the chapter "Essay on Seeing Things as Equal" was actually written by Shen Dao.[154]

The Zhuangzhi rejected both the traditionalism of Confucianism and the utilitarianism of Mohism as being implicit in nature or the judgement of heaven, combining political anarchism with an exhortation to follow the "The Dao".[149] An interaction between Confucius and Lao Tzu describes Confucius "Way of the former kings" as "dim footprints";[150] heaven and earth "maintaining their eternal course" and it's features their ranks and stations. Lao Tzu exhorts Confucius to learn to guide his steps by "Inward Power" and the course set by "the Way of Nature", calling goodness and duty "chaff from the winnower's fan" unnerving and irritating to inner tranquility.[151] While on the one hand Lao Tzu comments on the self-importance of hedonist philosopher Yang Chu, saying that "the power that is most sufficing looks inadequate",[152] the hedonistic characters of another chapter, Chao and Mu comment that "to degrade life below the level of death is a course that, to say the least, could not be embarked upon without a level of reflection."[153]

The primitivism of the Zhuangzhi is exemplified by mundane figures that embody their specialties as highly cultivated Daos ("ways"), executing them easily.[147] With, for instance, the art in the right pace of wheelwriting not being wordable, the "records of the sages" are described as the "lees and scum of bygone men."[148]

The Zhuangzi is generally considered the most important of all Daoist writings.[144][145] Arthur Waley selects him to represent Taoist thought in his book, Three Ways of Thought in Ancient China,[146] and Archaeological evidence suggests the possibility that some of the texts may have actually preceded the Laozi. It was attributed to Zhuang Zhou—"Master Zhuang", a man generally said to have been born around 369 BC in the state of Song. The Outer Chapters" are generally thought to have been added later.

Though your virtue may be great and your good faith unassailable, if you do not understand men's spirits, and instead appear before a tyrant and force him to listen to sermons on benevolence and righteousness, measures and standards - this is simply using other men's bad points to parade your own excellence. You will be called a plaguer of others. He who plagues others will be plagued in turn.

The Complete Works Of Chuang Tzu Translated by Burton Watson "Section Four - In the World of Men"[143]

(369-286 BCE) Zhuang Zhou

The Warring States reformers ultimately reduced the importance of charisma, and thus the burden on the ruler. In Shen Buhai and Han Fei's programs, intelligent ministers were the ruler's most important aid; the minister’s duty was to understand specific affairs, and the ruler was responsible for correctly judging the performance of ministers, something Han Fei recommended be legally systematized. Rather than rely too much on his own judgement, plans could be judged by their results, and rewarded or penalized systematically. Officials could judged by their concurrence or rejection of proposed programs.

As part of his technique Shen Buhai (Marquis Zhao of Han from 351 BCE to 337 BCE) advised that, inorder to ensure that all of his words be revered, a wise ruler should keep a low profile and hide their true intentions by feigning nonchalance and identify their position with the words of inferiors; theoretically, by cloaking both his desires and his will, rulers could force reliance upon their dictates and check sycophancy. If no one can fathom the ruler's motivations, no one can know what behaviour might help them manipulate the ruler and get ahead other than to heed orders and perform meritoriously. More Legalistic philosophy the use law as part of a program for indirect action.

As opening chapter[87] of the Han Feizi reads: "the territorial expansion of the feudal lords leads to the damnation of the Son of Heaven and the extraordinary wealth of ministers leads to the downfall of the ruler... The same reasons never fail to hold true." In-order to advance the management of his patron, ruler of the Han state, the foundational reformer Shen Buhai formalized the concept of shu, or technique, which he considered to be the primary good of the ruler for the management of an autocratic-bureaucratic model of administration.[14]

Shen Buhai who was Chancellor of Han from 351 BC to 337 BC. Paul R. Goldin writes that "Creel rightly emphasized that Shen Buhai’s most important administrative recommendation was xingming 刑名/形名, or comparing an official’s “performance” (xing) to the duties implied by his “title” (ming), and then rewarding or punishing him accordingly..." Though considered by Creel a foundational Realist, "This idea does not presuppose a legal code—or any legal consciousness whatsoever."[41]

If the sovereign does not compare what he sees and hears, he will never get at the real... If the ruler listens straight to one project alone, he cannot distinguish between the stupid and the intelligent. If he holds every projector responsible, ministers cannot confound their abilities.

Han Fei Zi "Chapter XXX. Inner Congeries of Sayings, The Upper Series: Seven Tacts"[142]

(351 BCE) Shen Buhai: Tact and Ministerial Management

Alternative to such arguments, the Han Feizi advocates not allowing ministers to over-ride their posts, and making penalty a monopoly of the law. Legalist texts like the Book of Lord Shang advocate the advancement of law to such a point as not to require middle men, having villagers (or their representative) enact it, though such might just be considered "rule by law" at a lower level.

One chapter of Han Fei's philosophy also allows that distant exercises of power outside the law, if profitable, be considered rewardable innovations, warranting promotion for the intelligent; after all, the Emperor cannot very well expect to flexibly manage for circumstances on the far side of the empire at any reasonable rate. Later Chinese generals sometimes abrogated orders (for better or worse, and of which Han Fei did not approve) for their own judgements and could not very well be replaced for lack of anyone better suited to the job. In fact, despite the large numbers of applicants to the administration more generally, ministers or generals sometimes had to be drafted for what were otherwise considered unenviable positions, which the Han Feizi urges loyal ministers to accept.

Being more basically oriented toward crime and fines, the later Han Fei criticized (though utilizing the rule by law like that of Shang Yang's for its lack of ministerial technique, which Fei's legal philosophy based upon the Han (state)'s Shen Buhai. In the Qin era the legal code was very strict where it could be applied (it did not succeed in uniformly applying it, for instance, upon the Chu (state)).

Han Fei considerations

Han Dynasty law (which is better preserved than Qin law) did put procedure on such things as criminal investigation,[141] but in the Han Fei tradition or Tianxia more generally this may be understood as ordination that power be derived from the Emperor through the legal code, rather than restriction as such. In fact, Hansen considers the Han dynasty rule by law to be a "worst of worlds" scenario. Western interpreters tending to say that what China needed more of was an emphasis on the "spirit" rather than the letter of the law, the spirit available to the Chinese at the time was that of Confucian rule by man, combined with the morally dubious rule by law.[90]

Though one would not call it a restriction of ministerial power as in the west, in ancient China civil procedure was originally a royal prerogative based upon a tradition of trying to make punishments that fit the crime. The broaching of such penal moderacy by Shang Yang for utilitarian purpose, enacting harsher penalty, is traditionally considered one of the reasons for the Qin dynasty's fall after victory. Traditional texts such as the early Zhou Book of Documents advised "carefulness and enlightenment".[90][140]

2. While law channels political power, law also enables power to be rightly exercised. Hence, law is a source of legitimation for the exercise of power.[55]

1. While law is an instrument of political power, law also constrains power. Hence, law and power are, to some degree, opposed.

Kenneth Winston argues that "the instrumentalism of the Han Feizi is more sophisticated and more principled than the conventional reading recognizes," suggesting an "internal morality of law... showing that denial of a compelling connection between law and morality is inaccurate to the theory itself." Winston, writes that, neglecting the legislative function, many mistakenly believe that judicial independence (or the separation of powers) is sufficient for establishing the rule of law. He establishes two primary points.

Chad Hansen writes, "(What most interpretive theorists) assumed was that Chinese legalist thinkers argued for using punishment as a way to control the people. The basis for control was the arbitrary commands of a ruler rather than either morality or Confucian ritual... neither arguing for the primacy of law over the rulers or officials nor that government should be restricted or regulated by law."[55][139] Focused as they were on strengthening and preserving the state, the respected translator of Han Fei’s work in English, Burton Watson, following Arthur Waley, who said that members of the “school of law” ’“held that law should replace morality” and referred to members of the fajia as “the Amoralists”, says regarding fajia, that they “professed to have no use for morality whatsoever” (and similarly for religion and ceremony).[55]

Commentators have sometimes made comparisons between the "rule of law" said to be practised today in the west, and the "rule by law" which is said to have developed in early China. Like Confucianism or Libertarianism, western rule of law is typically portrayed as being based on ethical concerns, but also on the restriction of ministerial powers. By contrast, the "Legalists" "amoral instrument of power", "rule by law", said to be basically oriented toward the establishment of order, has in the past been taken scholarship at face-value as more lacking in such content. The University of Hong Kong's Chad Hansen dissents, writing that "The moral ideal of a rule by a system that ensures people a measure of protection against arbitrary official coercion is not a peculiarly Western value. The idea that such a system allows people to choose courses of action that are free from risk of punishment has deep roots in Chinese tradition -- even in Confucianism. However, its implementation is a difficult matter."[90]

The defining of everybody's rights and duties is the road that leads to orderly government, but the not defining of everybody's rights and duties is the road that leads to disorder. Where there is a tendency towards disorder and one governs it, the disorder will only increase, but where there is a tendency towards order and one governs it, there will be order. Therefore, the sage kings governed order and did not govern disorder.

Shang Jun Shu "Fixing of Rights and Duties"[138]

If a people are not orderly, it is because their prince follows inferior ways; and if the laws are not clear, it means that the prince causes disorder to grow. Therefore, an intelligent prince is one, who does not follow an inferior way, nor causes disorder to grow, but he establishes himself, by maintaining his authority and creates order, by giving laws; so that he gains possession of those, who are treacherous towards their ruler.

Shang Jun Shu "Unification of Words"[137]

Rule by Law

Accepting Yang's emphasis on the standardization of weights and measures, Qin rulers divided families into smaller households, and adopted, in varying degrees, the practice that no individual in the state should be above the law (and ensuring harsh penalties for all cases of dissent). In theory, if penalties were heavy and the law was equally and impartially applied, neither the weak nor the powerful would be able to escape consequences, and by emphasizing performance over sophistry hoped to eliminate bureaucratic corruption and intrigues. Qin Dynasty legal codes required officials to correctly calculate the exact amount of labour expected of all artisans;[136] if the artisan was ordered to perform either too much work or too little work, the official would be held accountable. In theory, ministers and other officials were prevented from performing some other official's duties and were punished if they attempted to blind the ruler with words or failed to warn the ruler of danger.

To encourage the development uncultivated lands, Qin being underpopulated, the book written after his policies proscribes the temporary abolition of taxes on new immigrants and the determination of land qualities for taxation, stating that even the lazy, the merchants, the criminals and innkeepers would turn farmers under the right conditions. Yang is said to have instituted generally the ability to buy and sell land. Such practices did not, during the time of the Qin, interfere with the system of title grants used in the government's merit-oriented officialdom. These could be sold, and money or grain more generally could used to purchase ranks, and thus posts and responsibilities. But the maintenance of higher aristocratic ranks and titles required military service if none other significant enough was performed.

Following the Book's doctrine of reward and penalty, people in Qin were granted rights according to rank. This was reform oriented; Yang's legal code allowed the common people to gain in rank if they performed well. For example, soldiers would gain in rank according to the number of heads the soldiers collected (a practice abandoned as Qin became more successful). A soldier may even gain noble rank. A farmer could gain rank according to his grain (more so in peacetime than wartime). Lü Buwei, originally a merchant, was able to become Chancellor of Qin, something that would never occur in the other six states which generally only gave higher posts to the well-connected.

The law was intended to run the state, make actions taken systematically predictable, and develop the resources of the state through penalty and reward. To avoid conspiracy, Shang Yang recommended the administration and the realm generally be divided into mutually observant realms of differing interests. Yang held that if the law is successfully enforced, even a weak ruler will be strong. To provide this benefit to the state, the doctrine of strict legal application in the Book of Lord Shang stresses that people under the ruler be made equal under the law, if not immediately than at least ultimately if for no other reason than to enhance the authority of the sovereign.

With the expansion of the Chu state and its Jin ally having betrayed it, Qin's Shang Yang would eschew politic of moral development for a more "realistic" policy of developing Qin's capabilities in agricultural and warfare, applying reform more thoroughly than his predecessors.[134] Contrary to tradition, Shang Yang would hold the aristocracy to some level of equal penalty under the law.[135] Contemporary of other Warring States reformers, Yang imported and developed the innovations of other states, including the already developed legal code of Wu Qi of Chu, establishing a more draconian version with the expressed intent of ending crime and facilitating agriculture. A basic tenet of the Book of Lord Shang being that law be made public, well-known and easy to understand, it emphasized "letting the law teach".

Ascending to the throne of the Qin state in 361 BC at the age of 21, Duke Xiao of Qin determined to restore the Qin state to its former glory as one of the Five Hegemons during the reign of his ancestor, Duke Mu.[133] Shang Yang responded to the duke's call, introducing reforms to the State of Qin beginning in in 356 BCE.

The law does not fawn on the noble; the string does not yield to the crooked. Whatever the law applies to, the wise cannot reject nor can the brave defy. Punishment for fault never skips ministers, reward for good never misses commoners. Therefore, to correct the faults of the high, to rebuke the vices of the low, to suppress disorders, to decide against mistakes, to subdue the arrogant, to straighten the crooked, and to unify the folkways of the masses, nothing could match the law.[132]
  • Fa (; p 'fǎ', lit. 'law'):

(356 BCE) Shang Yang and the advent of Qin legalism

The Realist's laws are also considered more in the context of fidelity to the monarch than any moral question of the Confucians; indeed, Shen Buhai does not mention virtue. Confucianism emphasized family alliances,[24] ritual and considers morality in a context of cultivating "virtue" quite apart from law, or otherwise tried to extract its service thereto. Warring State's period reformers, especially that of Shang Yang, flouted the traditional the conservative order and Confucian moralities in-order to advance reform. Sometimes considered foolish or unacceptable to state interests, Shang Yang restricted patrilineal descent to render such things utilitarian to the state, still using it in their reward schemata, particularly in the military.

Hearing virtuous words, one takes them to be capable, and on asking their partisans, one thinks that they are indeed so. Therefore, one prizes them without waiting for them to acquire actual merit, or one punishes them without waiting for them to commit crimes. How can one manage the people of an entire country in this way?

Shang Jun Shu, "Attention to Law"[131]

Despite the exchanges between the "schools", Warring States period reformers tended to either lack Confucianism, or in the case of Shang Yang and Han Fei rejected or even vilified Confucianism's private morality (or Mohism's watchful justice of ghosts). Though the bulk of the polic proceeding Warring States Shang Yang and Han Fei was not based on law, the two would nonetheless long serve as the face of the term "Fa-Jia", or Legalism. The success of Qin's rule by law during the Warring States period and subsequent inheritance of its administration by the Han Dynasty would constitute a fundamental turning point toward a unitary state,[129] with the inclusive cultural and ethnic unity of the Han Chinese rendering future developments of separate nations as lacking any sufficient reason.[130]

The political methodology of the Warring States might be most accurately understood as a fruition. Far from being discrete, those termed "Legalists" were very much syncretic, drawing on earlier reforms of the Han, Chu and Wei states, and the intellectual activity like that of the other "schools". Qin's emphasis on the definition of ranks and offices contrasts with the earlier Chu dissipation for lackthereof, having used officials to establish its state but failing to define or otherwise establish roles for them. Much of Mohism was concerned with political philosophy. The hierarchical methods of the international Mohist school and that of the reformers related, both being antithetical to tradition[128] and arguing the primacy of authority outside the family, emphasizing the meritocratic rather than aristocratic form of government that would be more likely get them into the offices of foreign states.

"Chinese Legalism"

Shang Yang of the outlying Qin state began reforms in 356 BCE, importing and reforming the legal code of later Chu reformer Wu Qi, applying it more thoroughly. In the sophisticated Warring States period Han, the already well developed officialdom presented its own problems. Shen Buhai – a minister from the Han state from 351 BCE to 337 BCE, sometimes called the "founder" of "Legalism" (though he did not use law), reframed for his own state the role of the old Zhou sovereign as interpersonal surveyor of the feudal realm in the direction of the officialdom.[14] The "outstandingly important" "foundational" Shen Buhai makes little to no reference to divine authority or ethics.[127] Shen did use Taoist terms like Tao (which, like Fa, Confucianism also uses) and Wu-Wei, but he uses them differently and was concerned neither with religion nor metaphysics. Shen was concerned almost exclusively with administration, and may have been one of the first to become aware of the centuries-long replacement of the feudal order by methodology for the control of what would become a bureaucracy.

With the decay of the Zhou line Schismatic hostility occurred between the Chinese states, and amongst aristocracy within the states themselves, bringing about a new type of ruler intent on breaking their power to consolidate their own.[125] Disenfranchised or opportunist aristocrats were increasingly attracted by the reform-oriented rulers,[14] bringing with them a philosophy concerned foremost with organizational methodology.[126] With the aristocracy no longer forming a harmonizing interest, these reformers would have to engage in wholesale, rather than piecemeal reform, establishing political methodology for the management of bureaucracies and bringing the trend of earlier Zhou decentralization to a reverse.[14]

Terracotta Army

Warring States period

A country facing these seven disasters will be destroyed easily by the enemy.

  1. Neglect of the country's defense, yet there is much lavished on the palace.
  2. When pressured by foreigners, neighbouring countries are not willing to help.
  3. The people are engaged in unconstructive work while useless fools are rewarded.
  4. Law and regulations became too heavy such that there is repressive fear and people only look after their own good.
  5. The ruler lives in a mistaken illusion of his own ability and his country's strength.
  6. Trusted people are not loyal while loyal people are not trusted.
  7. Lack of food. Ministers are not able to carry out their work. Punishment fails to bring fear and reward fails to bring happiness.

Should the ruler be unrighteous, seven disasters would result for that nation. These seven disasters are:

Mo believed that the ruler should love all people benevolently, and select officials are according to merit. He compared the carpenter, who uses standard tools to do his work, with the ruler, who might not have any standards by which to rule at all. The carpenter is always better off when depending on his standard tools, rather than on his emotions. Ironically, as his decisions affect the fate of an entire nation, it is even more important that a ruler maintains a set of standards, and yet had none.

Between Mozi's background as an engineer and his pacifist leanings, the Mohists became experts at building fortifications

Made up of elements from both the scholarly and working classes, the Mohists formed a highly structured political organization, networking local units in all the major kingdoms of China, hiring out their services in order to realize their ethical ideals as contained in the writings of Mozi. Like Confucians, they The Mohists supported a "centralized, authoritarian state led by a virtuous, benevolent sovereign and managed by a hierarchical, merit-based bureaucracy." They advocated a unified, utilitarian ethical and political order, positing some of its first theories and initiating philosophical debate in China. In their hermeneutics they contained the philosophical germs of what for the protocol and method of what Sima-Tan would term the "Fa-School" (Legalists), contributing to their political thought in the Warring States period.[124]

Mohism is best known for the concepts of "impartial care" (Chinese: 兼愛; pinyin: Jian Ai; literally: "inclusive love/care"). This is often translated and popularized as "Universal Love", but Mozi believed that the essential problem of human ethics was an excess of partiality in compassion (as in Confucianism), not a deficit in compassion as such. In support of their ethics they developed the sciences of fortification and statecraft, and wrote treatises on government ranging in topic from efficient agricultural production to the laws of inheritance and were often hired by the many warring kingdoms as advisers to the state. In this way, they were similar to the other wandering philosophers and knights-errant of the period.[123]

Most scholars date Mozi at around 470-391BCE, being born around the time of the death of Confucius. Later perniciously criticized by Mencius,[119] the Mohist school otherwise "died out during the decades following the Qin conquest of 221", but was very influential in the Warring States period. Mozi might be considered the first to have "offered a strong intellectual challenge to Confucianism,"[120] and the Mohist school is generally considered to have been the main, if not contending school with Confucianism "during the two centuries prior the Qin hegemony."[121] A man "whose name was constantly linked with that of Confucius" until the beginning of the Han dynasty, Feng Youlan considered Mozi to be "one of the most important figures of Chinese history."[122]

(470-391 BCE) Mohist utilitarianism and meritocracy

Much of the syncreticism is just a case of using the same language. Besides subtle ideological differences in his Taoistic expositions, realists like Han Fei may not have believed at all in Taoism, just using Taoistic rhetoric. Ultimately, though some Warring States Realists may even be said to have grounded upon the emerging philosophy of Taoism, by and large their concerns may be called purely administrative if not areligious.[118] Taoist documents like the Zhuangzi also criticize administrative methodology as not resting in "prefect natural action", and therefore not succeeding.

Though, like the other reformative states, on the periphery and using more rarefied methods, Qin regarded itself as a rehabilitator of Chinese civilization, referring to its coming era as the "water" phase of Wu Xing to Zhou's "fire" phase.[115][116] The Warring States Book of Lord Shang explicitly relates order with simplicity and disorder with complexity, teaching that in an orderly state, "laws abolish laws" and "words abolish words".[117] Through application, the Legalists suggest an ultimate end to the problems targeted by laws and institutions, if not the institutions themselves. Stillness being attained and the creative purpose of law being accomplished, it goes unused. Thus, together with the tradition of sage-kings, the book regards law as an intermediary tool in a cosmological narrative used by the ruler for the attainment of supremacy (restoration of the mandate) and rectification of the world, not civil progress or reform as such.

If anybody, not authorized by laws and orders, attempts to cope with foreign intrigues, guard against civil disturbances, produce public benefit, or manage state affairs, his superior should heed his word and hold it accountable for an equivalent fact. If the word turns out true, he should receive a big reward: if not true, he should suffer a heavy penalty. Such is the reason why in the state of an enlightened sovereign there is neither dispute nor controversy.

Han Fei Zi "Chapter XLI. Inquiring into the Origin of Dialectic"[114]

Realists flouting traditional morality related with Taoism in differing degrees as background for their arguments. The later Han Fei makes the Taoist argument against the ultimate veracity of complex moral systems, on the basis of no such complexity existing, for example, in congenial family relations.[112] As in Taoism, the Book of Lord Shang often considers private morality useless or even harmful, though for Shang because it serves to promote people for reasons other than merit, and as in Mohism for the multiplicity of moral opinion. The book instead prescribes that a legal code settle moral disputes, recommending that it be clearly written and public[113] (criticized by the Zhuangzhi as uninspiring). As in Taoism, much of Shang Yang's philosophy grants a central place to the discussion of "essentials" or "fundamentals", but with a focus on the state, and like Shen Buhai does not discuss Taoism or its metaphyiscs.

Observing the developments of the period as juxtaposed to the earlier eras, Taoists, Mohists and the rhetoric of some political realists would come to define the development of morality as decay from a higher order, if not the beginning of disorder (from "Tao" emerges "Teh", or virtue, a semblance of order, and from there only disorder[111]). In Contrast with Confucianism, Taoism and Realist reformers would draw upon beliefs in the origins of the world in simplicity a la the creative power of Heaven, as in the Wu Xing and Iching, and suggest a return to stability or stillness.[14]

Like others, the Chinese state claimed divine and moral authority. But this was not always the case. Discourse on virtue only emerged with the Zhou "Mandate of Heaven", and as late as the early Zhou morality had been implicit if not looser, only tightening with the tracking of patrilineal descent. In the primacy of the Zhou, blood-tied vassal relations needed not be more than informal, and "chivalry" only emerged in the conflict of the Spring and Autumn period.[110]

The legitimization of regimes through cosmological narrative is very old, if not universal; in the European Middle Ages, Thoma Aquinas described a "Great Chain of Being" that can be compared with the feudal order, stating that nature itself depended upon a "labyrinth of obligations."[107] Chinese reformers departing from traditional morality fell back on cosmology to buffer their arguments. Though the Chinese Realist's use of Taoism, metaphysics and utopias are generally only considered to have been supplementary to those of immediate practicality, much of Han Fei's writing does use Taoistic and naturalist phraseology.[108] In one instance Fei espouses Taoist utopia as the product of Fa.[109]

Huangshan is commonly thought to have been named in honor of Huang Di, the Yellow Emperor, mythological ancestor of the Han Chinese. One legend states that Huangshan was the location from which the Yellow Emperor ascended to Heaven. Another states that the Yellow Emperor "cultivated moral character and refined Pills of Immortality in the mountains", and in so doing gave the mountains his name.

Cosmological developments

In his reform essay Dissenting Views, Qing dynasty's Feng Guifen would refer to the west's advancement in intellectual inquiry as "calling things by their true names."[106]

Confucius began a doctrine that would also be used by later philosophers of the "Fa" school, in a very different sense, called the "Rectification of Names." Confucius held that for every action, there is a word that describes that action. His Rectification of Names meant that "things in actual fact should be made to accord with the implications attached to them by names", the idea being that the prerequisites for correct living and efficient government was that "all classes of society accord to what they ought to be." Ruler, minister, father and son all have social names, and with their social names came responsibilities and duties. The rectification of names called for a standard language in which ancient rulers could impose laws that everyone could understand to avoid confusion.

Rectification of Names

"Guide them by edicts, keep them in line with punishments, and the common people will stay out of trouble but will have no sense of shame. Guide them by virtue, keep them in line with the rites [li], and they will, besides having a sense of shame, reform themselves.”[105]

A major basis for the Chinese philosophy of “rule of ritual” rests in the Analects:

(497 BCE) Confucius

During most of the seventh and sixth centuries, the northern border state of Jin, a large, mainstay vassal of Zhou, was composed of an assortment of semi-independent city-states. While Chu was centralizing power through a rising bureaucracy, Jin continued to have a feudal power structure, with aristocratic families ruling individual counties. Succession issues were constant in Jin as far back as seventh century. Over the course of a few generations, the major aristocratic families gained enough power to undermine the ruling duke's authority, and fought each other and the Jin Duke as much as they fought other states. In 546 BCE conflicts between aristocrats and with the Duke escalated and a civil war (497-453 BCE) commenced. In 376 BCE, the states of Han, Wei and Zhao deposed Duke Jing of Jin and divided the last remaining Jin territory between themselves, which marked the final end of the Jin state.

In 543 BCE, like Shang Yang two hundred years later, the reformer [103][104]

During its expansionist phase (600 BCE), the hegemonic southern Chu dynasty appointed officials to manage the territories rather than merely create fiefdoms,[102] much to the opposition of its aristocracy. Though Chu would gain a reputation as an unruly and chaotic state, it was actually one of the stronger kingdoms, with an ancient respect for its centralizing royalty. The culture of the enormous state would play a major cultural influence in the succeeding Han dynasty, with figures playing key roles in the post-Qin civil war, the Dazexiang Uprising and Chu–Han Contention, hailing from it, including the future Han Emperor Gaozu and the rebel leader Xiang Yu.

Bronze from the Tomb of Chu in Xichuan.

Administrative expansion and feudal disintegration

The Guanzi compilation named after him, too, was a moralistic text, not suggesting much in the way of a standardized or comprehensive code to rely upon, still emphasizing things like the less systematized orders of the Sovereign (who became increasingly important), or, for instance, the importance of the "five classes" as a basis for order.[99] The text includes arguments favouring displays and inculcation of Confucian virtues over rule by law, and in a similar manner to famous Sinologist Creel, Rickett writes that "the political writings are usually described as Legalist, but 'Realist' or "realistic Confucian" might make a description. For the most part they tend to present a point of view much closer to that of the realistic Confucian, Xunzi than either the highly idealistic Confucianism of Mencius or the Draconian Legalism advocated by Shang Yang and his followers and supposedly implemented in the state of Qin, especially under the First Emperor."[100] While, like the Book of Lord Shang, chapter one (Mu Min) emphasizes the clearing of wasteland for agriculture, the basis for it's state lay in the "four virtues" (proprity, righteousness, integrity, sense of shame).[101]

As someone advancing a rule by administration, he would be disliked by later Confucians (who "aspired to produce orderly rule solely through the charismatic excellence of the aristocratic leaders of the state").[98] However, Confucius himself liked him, saying that, "It was due to Guan Zhong that Duke Huan was able to assemble the feudal lords on numerous occasions without resorting to the use of his war chariots. Such was his goodness!"[96] Guan Zhong actually preceded Confucius, Confucius only considering himself a transmitter of older values.

The reforms of Guan Zhong (720-645 BCE) applied levies and economic specializations at the village level instead of the aristocracy, and shifted administrative responsibility to professional bureaucrats. Rickett considers him to have been one of the "chief models for a new type of professional bureaucrat and political adviser who came to the fore as the old hereditary officials proved inadequate for the task... serving as a shining example of what could be accomplished if only the ruler would listen to the advice of his ministers."[97]

If land is not distributed in an orderly fashion, government offices will not be well managed. If offices are not well managed, production will be poorly organized. If production is poorly organized, goods will not be plentiful. There is a proper way.

Guanzi "Military Taxes"

In the Spring and Autumn period officials began reforms in order to support the authority, states, and militaries of the kings,[15] who began to solidify the sprawling Zhou realm into their own centralizing states. R. Eno of Indiana University writes, "If one were to trace the origins of Legalism as far back as possible, it might be appropriate to date its beginnings to the prime ministership of Guan Zhong, chief aide to the first of the hegemonic lords of the Spring Autumn period, Duke Huan of Qi (r. 685 - 643)."[94] However, Allyn Rickett, translator of the Guanzi text bearing his name considers that, "judging what was said of him in the Zuo zhuan, he could qualify, at least in most respects, as an ideal Confucan minister."[96]

(685 BC) Guan Zhong and "realistic Confucianism"

The Qi city of Linzi was one of the largest and richest of the Spring and Autumn Period, and home to the Jixia Academy.

One early "Huang-Lao" text coming out of the Jixia academy, the Guanzi, whose traditional author was said to be Guan Zhong, was actually a compilation mostly of Jixia scholars. A number of its chapters chapters express a blend of Legalist, Confucian, and Daoist philosophy that may be considered "Huang-Lao".[95]

Cenering around the Jixia Academy, "Huang-Lao thought" is considered to have early emerged as part of an effort to develop solutions for the restoration of the feudal order. The Taoistic side of the pro-feudal ideology includes texts like the Huainanzi, emerging as the ideological backdrop to the early Han Dynasty feudal court, combining a Realpolitikal commentary, including legalistic variations, with an even more hands-off approach, espousing their laissez-faire as avoiding the faults of the other "schools". Following the Rebellion of the Seven States, Emperor Wu of Han tired of them, favouring the Confucians.

In the purely theoretical sense, Goldin explains Sima Tan's definition of Legalism as "the view that kinship and social status should be disregarded by administrative protocols, which treat everyone equally and thereby elevate the sovereign over the rest of humanity."[41] Chinese aristocrats more generally would bitterly oppose the promulgation of institutions (fa). R. Eno of Indiana University writes, "(Fa) ran counter to basic beliefs of the Zhou feudal structure, which aspired to produce orderly rule solely through the charismatic excellence of the aristocratic leaders of the state, in the manner of Yao and Shun."[94]

The Huang-Lao faction was affiliated with rich and independent families with a power-base far from the capital.

Emergence of restorative schools

When the Zhou kings could no longer grant new fiefs, their power began to decline and vassals began to identify with their own regions. An alliance between rebels nobles and unsinicized Rong ultimately forced the Zhou king east, resettling in Luoyang.[93]

Central decay and feudal hegemony

John Dewey considered the Orient and early societies more generally to be custom-based. In the The Public and its Problems Dewey contrasted the polity of the Orient as being "submerged in morals", namely filial piety, wrongdoing being culpable "because it reflects upon one’s ancestry and kin." Submitting a dispute to them is a considered disgrace.[92]

Chinese customary law did develop earlier than any complex Confucian system of virtue or morality, out of much older ancestor worship.[90] But neither ancestor worship, nor the development of complex societies therewith are historically unusual. For instance, the Ashanti Empire had a sophisticated bureaucracy, with separate ministries handling state's affairs. But it invoked religious, rather than secular-legal postulates, viewing as sins what the modern state views as crimes, antisocial acts being disrespectful of the ancestors.

In the past, general statements have often been made to the effect that, regarding law, the ancient Chinese neglected ethical questions, ultimately not basing said form of rule upon any justification. The "rule by law" of the "Legalists" was developed out of the codification of general royal promulgations backed up by force in-order to achieve social order.[90][91]

Traditional law

Liang Zhiping theorizes that law emerged initially in China, namely, as an instrument by which a single clan exercised control over rival clans.[55] In the Spring and Autumn period, a Qin king would still memorialise to heaven penalty 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.[89]

As illustration, that which enables the tiger to subject the dog, is his claws and fangs. 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. The lord of men controls his ministers by means of chastisement and commendation. Now supposing the ruler of men cast aside the handles of chastisement and commendation and let the ministers use them, the ruler would in turn be controlled by the ministers."[57]

Hulsewe writes "(Shang Yang and Han Fei) were not so interested in the contents of the laws as in their use as a political tool... the predominantly penal laws and a system of rewards were the two 'handles'".[88] As an opening chapter[87] of the Han Feizi says: "The ruler of one thousand chariots, if not on his guard, would find close by him vassals aiming to shake his authority and upset his country." Han Fei writes "The means whereby the intelligent ruler controls his ministers are two handles only. The two handles are chastisement and commendation...

Phrases the like the "reigns" or "handles of the state" are ancient in Chinese terminology for rule. As "the Two Handles" it is most famously used in the Han Fei Zi for penalty and reward, but similar terminology also occurs in other texts, for example the Rites of Zhou and in the Huainanzi. The Han Fei term 柄bǐng is interpreted in the English translation as the handle. But it may be more specifically translated as referring to the handle of one particular royal implement, the sword, that being that which "affords an advantage."[86] Han Fei and the Daodejing both warn about the dangers of such implements, and Han Fei cautions against their open transport.[87]

More than metaphor, many characters in Chinese have multiple meanings. One character for managers or governing, 御 yù, also refers to Chariot driving. Pre-Han nobles used chariots to move about the then primarily infantry-based battlefield. The Zhou kings were known for surveying their realm by carriage, giving the term a connotation of Shi 势, or power and information gathering, which Han Fei and his predecessor Shen Dao recommend the ruler monopolize and which would be bureaucratized in the coming era.[31]

A modern statue of the First Emperor and his attendants, as though they were on horseback.

Handles of the state

Mark Edward Lewis writes in Early Chinese Empires, "(A) basic innovation in classical China was the invention of the figure of the emperor. He was not merely the supreme ruler, chief judge, and high priest but the very embodiment of the political realm."[81] The Shang Shu credits the fifth King Mu of Zhou (r. 956-918 BCE) with establishing the first systematic legal code.[82] Early Zhou documents, not generally referenced as Legalist, also emphasized the use of reward and penalty characteristically associated with Lord Shang and Qin of the later, bureaucratizing Warring States Period.[83][84] But with the decay of the Zhou line, five hundred years later, when Confucius (551–479 BCE) was born into the class of shi (士), there was still little actual statutory legal development outside central Zhou territory.[85]

It's "four occupations" were the shì (士) the class of "knightly" scholars, mostly from lower aristocratic orders, the gōng (工) who were the artisans and craftsmen of the kingdom and who, like the farmers, produced essential goods needed by themselves and the rest of society, the nóng (农/農) who were the peasant farmers who cultivated the land which provided the essential food for the people and tributes to the king, and the shāng (商) who were the merchants and traders of the kingdom. People were not born into the specific classes, such that, for example, a son born to a gong craftsman was able to become a part of the shang merchant class, and so on.

King Wu maintained the old capital for ceremonial purposes but constructed a new one for his palace and administration nearby at Hao. To maintain Zhou authority over its greatly expanded territory and prevent other revolts, he set up the "feudalistic" fengjian system, posthumously termed as a "combination of Confucianism and Legalism." The fengjian system enfeoffed royal relatives and generals in the east, including Luoyang, Jin, Ying, Lu, Qi and Yan. Many of these became major states when the dynasty weakened.

Wu countered Zhou's crisis of legitimacy by expounding the doctrine of the Mandate of Heaven, which admonished the Zhou clan not to be negligent, while accommodating important Shang rituals at Wangcheng and Chengzhou.[80] Though beginning to lose power to its vassals within seventy-five years of its foundation, the "feudalistic" Zhou dynasty, renowned for its prosperous stability, long and successfully relied on a system of less methodical interactions between the Emperor and the then-familial aristocracy, establishing the beginnings of a political methodology that could be built upon by later reformers.[31]

Though considering the term feudalism accurate,[78] based on contradictions suggested by data of the time Herrlee Creel, posited in 1970 that the western Zhou dynasty ruled over an empire, rather than a loose confederation,[79] and that the foundations for the Imperial Chinese state lay in that period.

The Cultural Grandeur of the Western Zhou Dynasty

(1046 BC) Zhou origins

Though Zhou territory would be established as larger on the whole, in consideration of its military defeats Li Xeuqin of "Eastern Zhou and Qin Civilizations" writes that, when compared with the rule of the Shang, the later Zhou rule actually was not particularly successful.[76] In fact, the Shang kings rarely needed to delegate power other than to their closest relatives and followers, like the later Zhou travelling their territory to survey it.[77] But the Zhou succeeded in the innovation of the enormously popular Mandate of heaven, basing their legitimacy on a proclamation of virtue. Zhou rule would carry a long-stable feudalism, which together with its propaganda would be remembered as a golden-age.

But the Shang were not a state in the modern territorial sense of the word, and most settlements lacked bureaucracy, essentially being an extension of the royal household.[73] The Shang depended upon the military skills of their nobility, though it's rulers could also mobilize the masses of town-dwelling and rural commoners as conscript laborers and soldiers for both campaigns of defense and conquest.[74] Aristocrats and other state rulers were obligated to furnish their local garrisons with all necessary equipment, armor, and armaments. The Shang king maintained a force of about a thousand troops at his capital and would personally lead this force into battle.[75]

The well organized agricultural sector combined with a writing system[69] allowed for the organization of a rudimentary military bureaucracy needed to muster the three to five thousand troops for border campaigns and the thirteen thousand troops needed for suppressing rebellions against Shang dynasty. It also supported an otherwise technologically innovative ruling elite.[70] The transformation of Shang priests into nobility saw urbanization amid the villages,[71] and their impressive bronze ware constantly imparted itself on the Zhou.[72]

[68] In its own territory the Shang king owned all land, directly controlling many large farms that were worked and cleared by royal labour gangs, combining this grain income with that of tributaries.[67]

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