Introduction

The Legalists (法家, fǎjiā, ‘School of Law’) were a late school which seems to have arisen from a need to provide a coherent intellectual justification and rationale for the methods that were being adopted by statesmen and political advisors in the later Warring States period. Like the other schools we have looked at, they don’t seem to have been recognised as a distinct ‘school’ until the Han dynasty historians started to organise the past. In fact, it’s open to question whether there is enough coherence in the doctrines to count as a ‘school’. A better way to have looked at the matter would probably have been in terms of thinkers who are involved in a particular academic ‘discipline’ – the discipline of applied government. Considered as a school, however, Hán Fēizi (韩非子; 280–233) may be taken as its major thinker: he synthesized the arguments and positions of several earlier figures into something that could stand as the beginnings of a complete theory of organization and management. In this synthesis he recognised at least three fundamental aspects to the problem of effective rulership:

1.                    fǎ (法):            law                          from Shāng Yāng (商鞅, d. 338)

2.                    shù (術):        tact                         from Shēn Bùhài (申不害, d. 337)

3.                    shì (勢):          authority                from Shèn Dào (慎到, ca. 395-315)

We shall consider what the ‘Legalists’ had to say about each of these below. 

Law and Order

Of these, by far the most important to the theory is the first – it is, after all, what gives the theory its name. The Legalists argued that the Law ought to be the fundamental medium of social discipline: that there ought to be laws that described the sorts of behaviours that were to be allowed or demanded from each person, and that each person would be compelled by the threat of punishment to obey those laws. This is the type of system that we live under today and so we think of it as the only reasonable way to organize society – but it really isn’t. We only know of published laws in China from a fairly late date – ca. 513 – and before that time society got on very well without them operating according to a quite different system. The system of social discipline that applied then, and that the Legalists were therefore arguing against, was, in fact, a two tiered system in which the behaviour of the nobility was guided by the lǐ (礼, ‘conventions’) and the commoners were kept in line by the application of xìng (刑, ‘punishments’).

a.                   The Failure of the Ancien Régime

The lǐ, of course, are familiar to us from our discussion of Confucianism. They are the traditional rules of behaviour (some of which are recorded in various ancient texts) which were accepted by the nobility as binding on the nobility. There was no other sanction than social acceptability associated with the lǐ. If a nobleman violated these standards he would be looked down on, despised, held in outraged contempt, etc., but there were no punishments to be applied, since punishment was itself an infringement on the dignity of a nobleman. The commoners, on the other hand, who could not be expected to be the morally exemplary specimens that the nobles aspired to be, were to be guided by xìng, which were determined by the nobility. If a nobleman was confronted with a local dispute amongst commoners, or one had violated some command of his, or there had been some other disruption to the life of the commoners, then it was up to the nobleman to rectify matters and to do justice. And he did almost entirely at his own discretion (although guided to some degree by applicable lǐ.) He could apply punishments variably, or grant mercy just as he saw fit.

Now, such a system could only be successful so long as the nobles really did feel themselves to be bound by the lǐ, and as long as the commoners could trust that the nobleman applying the xìng was virtuous and had the interests of social harmony upermost, and would do justice to the best of his ability, and would follow the lǐ. However, as Han Feizi describes it, by the time of the Warring States it had become more and more clear to everyone that the world in which they were living was a very different world from that of the ancient sages, where lǐ and xìng could be relied on to keep order. For a start, the new states were too large to be run according to the traditional principles, which relied to a significant degree on the personal charisma of the nobility, and the nobility itself was now too devastated and decadent to play the required normative role even in a small state. The lǐ simply were not applicable any longer, and the xìng were not being fairly or consistently applied. Therefore disorder was the rule in the world.

b.                   The Choice of a New Principle

It was clear to the Legalists that some new method of establishing order in the world was required, and therefore they looked for a new ‘standard’ or ‘norm’ of behaviour. The word  fǎ (法) at that time was used for all those things, as well as meaning ‘law’. More particularly it seems to have meant something rather like a ‘pattern,’ as in a pattern of behaviour. Law, of course, is just one way of establishing a pattern of behaviour; but because of the emphasis that the school did come to place on Law, it is in fact reasonable to refer to them as Legalists.

The choice of Law as the method for giving order to society was argued for on the basis of a rather gloomy theory of human nature, which held that

(1)           Man was naturally self-interested, and

(2)           the only universally effective way of modifying Man’s behaviour was by means of the ‘Two Handles’ of reward and punishment.[1]

As Han Feizi said:

In ruling the world one must act in accord with human nature. In human nature there are the feelings of liking and disliking, and hence rewards and punishments are effective.[2]

By establishing rewards and punishments according to Law, this single principle of order could be extended to the whole of society – so that, in our terms, everyone would be ‘equal before the Law’. This was a principle established by Shāng Yāng[3] under the rubric ‘one people’ (一民, yī mín). Lord Shang also realised that in order for these laws to have the desired effect they would have to be made known to all, and to be simple and comprehensible, and, above all, to be predictable in their application: therefore his principle of ‘fixing the standards’ (定法, dìng fǎ) insisted that the laws be objectively interpretable and impartial in their effect, so that the element of subjectivity and privilege in the old system could be eliminated. That being the case

Since the officials well know that the people have knowledge of fa and orders … they dare not treat the people contrary to the fa …

c.                    The Confucian Critique

This, which the Legalists considered to be a virtue of their system, would have been considered by Confucius to be a great fault. In fact Confucians had two main criticisms of the Legalist system:

a.                    It eliminates the role of a moral vanguard heretofore played by the nobility

In the Zuozhuan (左傳, ‘Commentary of Zuo’), a commentary on the Spring and Autumn Annals, Confucius is made to comment on the publication of laws by some small state. (Oddly enough, the laws were written on tripods.) His opinion there is that:

The people will study the tripods and will not honour the nobles; what function will the nobles then have to preserve[4]

For Confucius, the role of the nobility was precisely to act as moral exemplars, and their virtues would spread amongst the common people so that even they would benefit from the nobles following the lǐ. If the nobles are to be made subject to punishments just like the commoners, it is no longer possible to see the nobles as somehow more innately virtuous than those below; and the fact that they are no longer in the position of applying their virtuous discretion in setting punishments and guiding the commoners means that they are no longer either able to express their virtues in their judgements, or to affect the moral understanding of the lower orders. The nobles have no longer any moral role. This might not be so bad except that it aggravates the second problem that arises from the Legalist system

b.                   It encouraged immorality in the commoners

Since there is no motivation for the lower orders – or, indeed, any one – to adhere to the old virtues, the only social discipline will be that provided by the law. It is now the laws themselves and alone that determine what is allowable and what is not. This being the case it is certain that the subjects will study the law carefully looking for loopholes and omissions such that by clever lawyering an advantage can be gained. With the law being the only support of social harmony, and the efforts of all being devoted to subverting the intention of the law, it is certain that harmony cannot be maintained for long. Thus in the Analects Confucius says:

If the people be led by laws, and uniformity among them be sought by punishments, they will try to escape punishment and have no sense of shame. If they are led by virtue, and uniformity sought among them through the practice of ritual propriety, they will possess a sense of shame and come to you of their own accord.[5]

The fundamental point at the back of both of these criticisms is that the Legalists rejected the idea that the proper goal of government was the moral transformation or cultivation of the people. They accepted them as they were – or as worse than they were, as Confucius/Mencius would think.  

d.                   The Intention of the Law

As for the content of all these laws, that was determined by the legislator, whose intention ought to be ‘the enrichment of the state and the strengthening of its military capacity.’[6] In this respect the Legalists were similar to the Mohists, for their goal was very clearly a specific form of ‘benefit’ to the country. The Legalists also agreed with the Mohists that a diversity of opinions in the state could only increase discord, and therefore it had to be eliminated. They were equally keen on creating uniform standards in all other parts of the culture, regulating weights and measures, language, axle lengths, etc.

Methods of Rule

Much as it would have been preferred, however, these laws could not just appear out of thin air, and men were still required to apply them. The Legalists therefore had a need to say something about these necessary instrumentalities. Han Feizi appealed to the theories of Shen Buhai in addressing this problem who argued that a ruler would have to apply shù, or ‘tact’, in order to be effective. He quotes him as saying that

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.[1]

In general, they hoped to establish a system in which the ruler would delegate functions and reward or punish the officials for their performance or failure according, again, to strict and objective criteria; and each level of government below the ruler would similarly use reward or punishment on its subordinates. Thus, it was hoped, the ruler would need to do nothing for everything to be done. (Sentiments like this have been interpreted as evidence of a sympathy with Taoism that is often remarked upon, but which seems rather superficial.)

We don’t need to consider this theory of effective bureaucracy any further here: it has little philosophical interest for us; but there are a couple of points that might be remarked on. In the first place we can perhaps recognise that the emphasis that Shen Buhai placed on the necessity of making the office-holder adhere strictly to the assigned functions of the office is inspired by more than just the requirements of rational organization; it also reflects the common philosophical preoccupation in Chinese philosophy of making things correspond to their names. We saw this most clearly in the Confucian recommendation that the effective ruler should begin with a ‘rectification of names.’ In the Legalist case, Han Feizi called it xing-ming, ‘making actualities responsible for their names’. In the second place Han Feizi recognises that the application of fa is impossible without shu, and the use of shu is pointless without fa. As he says; “tact without law or law without tact is useless.”[2] Therefore, although it is true that Shen Buhai’s theory of bureaucratic organization does not depend upon any particular theory of laws that the Legalists were promulgating, yet it really makes little sense to treat it, as some have proposed to do, as a theory independent of the Legalist mainstream. It really has to be considered as an integral part of that range of moral/political theories.

Authority

Doubtless, the Legalists would have liked to eliminate the ruler’s role entirely, since the ruler, being human, was a weak point where irrationality and subjectivity might enter into the system. But this was not possible – partly because there was no possibility of establishing a hierachical system without a human apex, partly because the Legalists were realists about the nature of their societies (see, for example, their attitude towards using the past as a model,) but mostly because they recognised that the authority of the ruler could not just be a matter of force. Han Feizi, in his synthesis, appealed to the idea of shì, which he associated with the thinker Shèn Dào, and which seems to be a necessary property of the legitimate ruler. It is not a matter of personal charisma, since this would be too directly inconsistent with the objective and impersonal thrust of the rest of the philosophy, but is rather a type of moral authority that is possessed by the ruler in virtue of his occupancy of the role of ruler. That is to say: moral power is associated with the office rather than the person in the office. There was already a tendency to this belief anyway. The idea of the Mandate of Heaven is not inconsistent with this; with the proviso that the Legalists would not accept that any individual had the right to claim the Mandate of Heaven other than the ruler. Han Feizi was quite clear that the overthrow of kings was always an illegitimate practice.

Conclusion

Given the aspiration to mechanical, universal application of simple laws, there was (intentionally) little scope for flexibility. But life is complicated, and all laws must admit of exceptions and different situations to some degree. (Judges can not be replaced by simple automata.) The Legalist system would not, however, make any concessions to the messiness of real human life. This inflexibility, and the harsh nature of the punishments, made the Legalist’s programmes unpopular in the end. They also suffered from being associated with the excesses of the first emperor of Qin, whose rule was an exemplar of the Legalist philosophy under the guidance of Lǐ Sī (李斯; Prime Minister of Qin 246-208,) a student of Xunzi and who was responsible for the death of Han Feizi whom he saw as a threat. Amongst the measures that he was responsible for were the destruction of as many of the non-Legalist philosophical works and non-Qin histories as they could get their hands on, and the deaths of any philosophers who would not bend to the imperial ideology.[1] At the same time he instituted a reform of the script. And the combined effect of these actions was to cause the loss of many old texts and the imperfect transmission of almost all the survivors. This was an incalculable cultural loss to China and to the world.