Essay Legalism in Chinese Philosophy

Legalism is a popularalbeit quite inaccuratedesignation of an intellectual

current that gained considerable popularity in the latter half of the Warring
States period (Zhanguo, 453221 BCE). Legalists were political realists who sought
to attain a rich state with powerful army and to ensure domestic stability in an
age marked by intense inter- and intra-state competition. They believed that human
beingscommoners and elites alikewill forever remain selfish and covetous of
riches and fame, and one should not expect them to behave morally. Rather, a viable
sociopolitical system should allow individuals to pursue their selfish interests
exclusively in ways that benefit the state, viz. agriculture and warfare; while a
proper administrative system should allow officials to benefit from ranks and
emoluments, but also prevent them from subverting the rulers power. Both systems
are unconcerned with individual morality of the rulers and the ruled; rather they
should be based on impersonal norms and standards: laws, administrative
regulations, clearly defined rules of promotion and demotion, and the like.

Legalist thinkers contributed greatly to the formation of Chinas empire both on

the theoretical level and as political practitioners; and many of their ideas
continued to be employed throughout Chinas history. Yet their derisive views of
moralizing discourse of their rivals, their haughty stance toward fellow
intellectuals, and their pronouncedly anti-ministerial rhetoric all gained them
immense dislike among the imperial literati. From Chinas second imperial dynasty,
the Han (206 BCE220 CE) on, the prestige of Legalism declined; only a few texts
associated with this current survived intact; and even in the modern period,
notwithstanding sporadic outbursts of interest in Legalism, this current has not
received adequate scholarly attention.

1. Defining Legalism 1.1 Major Legalist Texts

1.2 Historical Context

2. Philosophical Foundations 2.1 Evolutionary view of History

2.2 Human Nature

3. Tillers and Soldiers: Ruling the People

4. Maintaining the Bureaucracy 4.1 Recruitment and Promotion
4.2 Monitoring Officials: Technique of Government

5. The Ruler and his Ministers 5.1 The Rulers Superiority

5.2 Entrapped Sovereign?

6. Assault on Culture and Learning

7. Epilogue: Legalism in Chinese History
Bibliography Primary Literature
Secondary Literature

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1. Defining Legalism

The term Legalist school (fa jia ??) is ubiquitous in studies of early Chinese
political philosophy. Despite manifold criticisms of its inaccuracy (e.g., Goldin
2011), the term may still be usefully employed, as long as two major points are
taken into account. First, Legalists were not a self-aware and organized
intellectual current; rather the name was coined as a post-factum categorization of
certain thinkers and texts, and its primary function before the twentieth century
was that of a bibliographical category in imperial libraries. Therefore, the
identification of any thinker or text as Legalist will forever remain arbitrary;
the term may be used as a heuristic convention but should not be employed (pace
Creel 1974) as an analytical device. Second, Legalism is a problematic name. The
Chinese term fa jia is already misleading, because it inadvertently reduces the
rich intellectual content of this current to a single keyword, fa. Legalism is a
doubly misleading English translation, because the semantic field of the term fa ?
is much broader than law; it refers also to methods, standards, impersonal
regulations and the like (Creel 1974: 147149; Goldin 2011). It is incongruent,
then, to discuss the fa jia within the context of the Occidental notion of the
rule of law, as was popular in early modern Chinese scholarship (e.g., Hsiao 1979:
442446) and as is sometimes done even nowadays (Fu Zhengyuan 1996: 158161). If
these intrinsic inaccuracies of the term Legalism are borne in mind, it can be
employedas in what followsmerely for heuristic convenience. The term is simply so
widespread in scholarly literature that replacing it with a new designation will
just further confuse the readers.

While the term Legalism was coined only during the Han ?dynasty (206 BCE-220 CE),
its rootsor more precisely the idea of grouping together several thinkers who will
be eventually dubbed Legalistscan be traced already to Han Fei ?? (d. 233 BCE),
who is often considered the most significant representative of this intellectual
current. In chapter 43, Defining the Standards (Ding fa ??) of Han Feizi ???,
the thinker presents himself as a synthesizer and improver of the ideas of two of
his predecessors, Shang Yang ?? (d. 338 BCE) and Shen Buhai ??? (d. 337 BCE) (Han
Feizi 43: 397400). Pairing Shen Buhai and Shang Yang, and adding Han Fei himself
to them became common from the early Han dynasty (see, e.g. Huainanzi 6: 230;
11:423; 20: 833). The historian Sima Qian ??? (ca. 14590 BCE) identified these
three thinkers as adherents of the teaching of performance and title (xing
ming ??) (Shiji 62: 2146; 68: 2227; translation borrowed from Goldin 2013: 8). This
term was synonymous to the later fa jia (Creel 1974: 140).

The first to use the term fa jia was Sima Qians father, Sima Tan ??? (d. 110 BCE).
In an essay on the essence of the six schools of thought, Sima Tan notices that
fa jia are strict and have little kindness, and do not distinguish between kin
and stranger, nor differentiate between noble and base: everything is determined by
the standard (or law, fa). Sima Tan criticized the Legalists approach as a one-
time policy that could not be constantly applied, but also hailed the fa jia for
honoring rulers and derogating subjects, and clearly distinguishing offices so
that no one can overstep [his responsibilities] (Shiji 130: 32893291; for
translations cf. Smith 2003: 141; Goldin 2011: 89). A century later the
bibliographical category of fa jia was created. The Han librarian Liu Xiang ??
(776 BCE) identified ten texts in the Han imperial library as belonging to fa jia
(Han shu 30: 1735). Thenceforth Legalist school remained a major category of
imperial book catalogues. Since the early 20th century this term has come to be
widely used for classification and analysis of early Chinese thought.

1.1 Major Legalist Texts

Of the ten Legalist texts in the Han imperial catalogue, six ceased circulating
more than a millennium ago; two arrived at our days relatively intact, and of two
others only a few fragments survived vicissitudes of time. The earliest (in terms
of its composition) surviving text is the Book of Lord Shang (Shang jun shu ???),
attributed to Shang Yang (aka Gongsun Yang ??? or Lord Shang ??), a major reformer
who orchestrated the rise of the state of Qin ? to the position of a leading power
of the Chinese world. In the process of transmission, the book lost at least three
chapters; a few others had been badly damaged, becoming barely legible. Since the
late 18th century efforts have been made to prepare a critical edition of the text
and amend its corrupted parts; yet more than two centuries passed before the
comprehensive critical edition was published (Zhang Jue 2012). The text is highly
heterogeneous in terms of its composition: some chapters were almost certainly
penned by Shang Yang himself; others may come from the hand of his immediate
disciples and followers, but a few other were written decades and even more than a
century after his death. This said, the text presents a relatively coherent
ideological vision, and it is likely that it reflects intellectual evolution of
what Zheng Liangshu (1989) dubbed Shang Yangs intellectual current (xuepai ??).

The second surviving text, Han Feizi ???, is attributed to Han Fei, a scion of the
ruling family from the state of Hn ? (not to be confused with the Hn ? dynasty),
a tragic figure who was allegedly killed in the custody of the King of Qin, whom
Han Fei wanted to serve. Of all Legalist texts in the Han imperial catalogue, the
Han Feizi fared the best over the vicissitudes of time: all of its 55 chapters
attested in the Han catalog are still intact. The issue of whether or not the
entire book had been penned by Han Fei is debatable: considerable differences among
the chapters in terms of style and mode of argumentation lead not a few scholars to
suspect that they come from different authors. On the other hand, the differences
may be explained as reflecting the process of Han Feis intellectual maturation, or
the need to adapt argumentation to different audiences; and since most of the
chapters present a coherent outlook, it increases the likelihood that most of them
were indeed written by Han Fei (Goldin 2013). Overall, the Han Feizi is considered
as philosophically and literally more engaging than the Book of Lord Shang, and it
has been more widely studied in China, Japan, and in the West.

Two other Legalist texts mentioned in the Han imperial catalog did not survive
intact, but lengthy quotations from them in the imperial encyclopedia have allowed
partial reconstruction of their content. Shenzi ?? is attributed to Shen Buhai, who
acted as a chancellor of the state of Hn ? in the middle fourth century BCE, and
who is credited with major administrative improvement there. Of the original six
chapters fewer than three dozen fragments remain intact (Creel 1974). Another text,
Shnzi ?? is attributed to Shen Dao ?? (fl. ca. 300 BCE), of whom very little is
known (it is even possible that the figure of Shen Dao a is conflation of several
personalities; see Xu Fuhong 2013: 28). Of original 42 chapters, seven survived
(albeit in an incomplete form) in a seventh-century CE encyclopedy; altogether over
120 surviving fragments of the text are considered authentic (Thompson 1979; cf. Xu
Fuhong 2013). In what follows, to avoid confusion between Shenzi and Shnzi, they
will be referred to as works of Shen Buhai and Shen Dao respectively.

The above four texts are the major repository of Legalist ideology. Several other
texts appear to be closely related to these in terms of ideological outlook and
vocabulary: of particular importance for discussing Legalism are several chapters
of a heterogeneous miscellany, Guanzi ??, which is nominally attributed to another
major reformer, Guan Zhong ?? (d. 645 BCE) from the state of Qi ?, but which was in
reality produced between the fourth and the second centuries BCE. Of further
relevance for understanding Legalist thought are a few segments of another multi-
authored compilation, the Lshi chunqiu ???? (ca. 240 BCE), and memorials of the
man who is considered the architect of the Qin ? Empire (221207 BCE), Li Si ?? (d.
208 BCE) (for Li Si, see Bodde 1938). In addition, many more texts and thinkers are
at times identified by scholars as Legalist; but since most of these
identifications are quite arbitrary they will not be considered in the framework of
the current discussion.[1]

1.2 Historical Context

Legalism is just one of the many intellectual currents that flourished in China
during the three centuries prior to the imperial unification of 221 BCE. This
period, often identified as the age of the Hundred Schools was exceptionally rich
in terms of political thought. The outburst of interest in political issues was not
accidental: it took place against the backdrop of a severe systemic crisis. The end
of the Springs-and-Autumns period (Chunqiu ??, 770453 BCE) was marked by the
progressive disintegration of political structures in the Zhou ? realm (the then
Chinese world). Gradually, the Zhou world became entangled in a web of debilitating
struggles among rival polities, between powerful nobles and the lords within each
polity, as well as among aristocratic lineages and among rival branches within
major lineages. By the fourth century BCE, a degree of re-centralization in
individual polities was achieved, but interstate warfare further intensified,
giving, in retrospect, the new era an ominous name: the age of the Warring States
(Zhanguo ??, 453221 BCE). As wars became ever bloodier and more devastating, and
with no adequate diplomatic means to settle the conflicts in sight, most thinkers
and statesmen came to an understanding that unity of All-under-Heaven
(tianxia ??) was the only means to attain peace and stability (Pines 2000). How to
bring this unity about and how to stabilize All-under-Heaven became the central
topic addressed by competing thinkers. In the final account, the Legalists ability
to provide the most compelling answers to this question became the singular source
of their ideological appeal.

Crises and bloodshed aside, the Warring States period was also an age rife with
opportunities for intellectually active individuals. It was an exceptionally
dynamic period, marked by novel departures and profound changes in all walks of
life. Politically, the loose aristocratic entities of the Springs-and-Autumns
period were replaced by centralized and bureaucratized territorial states (Lewis
1999). Economically, the introduction of iron utensils (Wagner 1993) revolutionized
agriculture, allowing higher yields, prompting the development of wastelands, and
bringing about demographic growth, as well as accelerating urbanization and
commercialization of the economy. Militarily, new technologies, such as the
crossbow, as well as new forms of military organization, brought about the
replacement of aristocratic chariot-led armies by mass infantry armies staffed by
peasant conscripts, resulting in a radical increase in warfares scale and
complexity (Lewis 1999). And socially, the hereditary aristocracy that dominated
the Zhou world during much of the Bronze Age (ca. 1500400 BCE) was eclipsed by a
much broader stratum of shi ? (sometimes translated as men of service), who owed
their position primarily to their abilities rather than their pedigree (Pines
2013c). These profound changes required new approaches to a variety of
administrative, economic, military, social, and ethical issues: old truths had to
be reconsidered or reinterpreted. For intellectuals eager to tackle a variety of
new questionsand particularly for the Legaliststhis was a golden age.

Each of the competing schools of thought sought ways to improve the functioning
of the state, to attain sociopolitical stability, and to bring about peace under
Heaven; yet among a variety of answers those provided by the Legalists appear to be
most practical. This is not incidental: after all, some of the major Legalist
thinkers, most notably Shang Yang, were the leading reformers of their age.
Legalist thinkers were at the forefront of administrative and sociopolitical
innovation; they were the most ready to dispense with bygone norms and paradigms;
and they were more pragmatic and result-oriented than most of their ideological
rivals. On the other hand, their dismissive attitude toward traditional culture and
toward moralizing discourse, as well as their highly critical stance toward other
members of educated elite, and their pronounced anti-ministerial approach, earned
them considerable enmity. In the long term, Sima Tans observation seems correct:
the Legalists recipes were highly effective in the short run but were much less
attractive in the long term.

2. Philosophical Foundations

Legalism is at times compared with modern social sciences (Schwartz 1985), and this
comparison grasps well some of its characteristics. Angus C. Graham (1989: 269)
notices that Legalists are the first political philosophers in China to start not
from how society ought to be but how it is. Indeed, this was the most practical-
oriented of all preimperial intellectual currents. Its proclaimed goal was to
create rich state and powerful army (fu guo qiang bing ????),[2] which would be
the precondition for future unification of the entire subcelestial realm. The
thinkers focus was on how to attain this goal, and less on philosophical
speculations. Consequently, their writings are generally devoid of overarching
moral considerations, or conformity to divine willtopoi which recur in the
writings of the followers of Confucius ?? (551479 BCE) and Mozi ?? (ca. 460390
BCE). Cosmological stipulations of political order, which became hugely popular
after the Laozi ?? (fourth century BCE) are of slightly higher importance for the
Legalists than morality or religion: they are referred to in some of Shen Buhai and
Shen Daos fragments and, more notably, in several chapters of the Han Feizi. Yet
these speculations are not essential for these thinkers arguments: hence, pace
attempts to consider cosmological digressions of Han Fei as foundations of his
political philosophy (Wang and Chang 1986), it would be more accurate to see them
as argumentative devices that were not fully assimilated into Han Feis thought
(Graham 1991: 285; cf. Goldin 2013: 1418).[3] Generally, Legalist thinkers display
considerable philosophical sophistication only when they need to justify their
departures from conventional approaches of other intellectual currents. In this
regard their views of historical evolution and of human nature are highly engaging.

2.1 Evolutionary view of History

The Warring States period was an age of comprehensive sociopolitical change, and
thinkers of different intellectual affiliations had to come to terms with this
change. The majority tried to accommodate it within the framework of the changing
with the times paradigm (Kern 2000: 170174): namely, certain innovations and
modifications of existent policies are inevitable, but these do not require a
radical overhaul of the current sociopolitical system, and do not undermine the
usefulness of the past as a guideline for the present. Legalists were much more
resolute in their willingness to dispense with traditional modes of rule, and they
questioned the very relevance of the past to the present. Their attack on
supporters of learning from the past was twofold. First, there was simply no
uniform model of orderly rule in the past to be emulated. Second, and more
substantially, society evolves, and this evolution turns behavioral modes,
institutions, and even values of the past obsolete.

The first and best-known argument in favor of dispensing with the past models is
presented in the first chapter of the Book of Lord Shang. Shang Yang is cited
saying: Orderly generations did not [follow] a single way; to benefit the state,
one need not imitate antiquity (Shang jun shu 1:4). Han Fei explains further: past
models are irrelevant not only because they were changing from time to time, but
also because we cannot verify exactly what they were. The way of the former
paragons is bitterly contested, and those who claim the authority of antiquitysuch
as adherents of Confucius and Mozisimply cannot agree on the lessons of the past
that are to be applied in the present: He who claims certain knowledge without
examining the issue is a fool; he who relies on things which are impossible to
ascertain is an impostor. It is therefore clear that those who rely on former
kings, and claim they can determine with certainty [the way of the paragon
legendary rulers] Yao and Shun, are either fools or impostors (Han Feizi 50: 457).

Yet having postulated the impossibility of learning from past models, Shang Yang
and Han Fei propose an alternative lesson that can be learnt: that changing
circumstances may require not a piecemeal but a comprehensive readjustment of the
sociopolitical system. To demonstrate the magnitude of change in the past, both
thinkers turn to remotest antiquity, and trace how the state was formed. For
instance, Shang Yang depicts social evolution from primeval promiscuous life to an
incipient stratified society and then to a fully mature state with laws,
regulations, officials, and the power of coercion. At the earlier stages of human
history, the people could be constrained by moral suasion; yet this was simply
because that was the age of relative abundance: Formerly the people cut trees and
slew animals [for food]; the people were few, while trees and animals plenty. Men
plowed to obtain food, women wove to obtain clothing; there was no use for either
punishments or administration, but there was order (Shang jun shu 18: 107). Han
Fei echoes Shang Yang: in the remote past the people were few while goods were
plenty; hence people did not compete (Han Feizi 49: 443). Now, this age of
primeval morality has gone forever. Both thinkers emphasize the devastating impact
of demographic growth on human mores. Nowadays, five children are not considered
too many, and each child also has five children; the grandfather is still alive,
and he already has twenty-five grandchildren. Therefore, the people are plenty
while commodities and goods are few; people work laboriously, but provisions are
scanty; hence the people compete (Han Feizi 49: 443). Under these new
circumstances, moral norms are no longer relevant; contention is the rule, and it
can be quelled only through coercion.

The evolutionary view of history and especially the emphasis that economic
conditions can alter moral values, distinguish the Legalists critically from
proponents of alternative models of state formation (Pines 2013a). The Legalists
imply that everything is changeable: as socioeconomic conditions change, human
behavior changes as well; and this in turn requires adaptation of political
institutions. Shang Yang summarizes:

When the affairs of the world change, the Way that is implemented alternates as
well. Hence it is said: When the people are stupid, one can become the monarch
by means of ones knowledge; when the generation is knowledgeable, then one can
become the monarch by means of ones might (Shang jun shu 7: 53).

The last phrase represents the rationale behind Shang Yangs model of state
formation. If radical restructuring of society was legitimate in the past, so it is
in the present. In the current situation, when the people are knowledgeable, a
powerful state, which is ready to coerce its subjects, is the only viable solution.
The Book of Lord Shang (but not Han Feizi) allowed for the possibility that in the
future the need for excessive reliance on coercion would end and a milder,
morality-driven political structure would evolve, but these utopian digressions are
of minor importance in the text (Pines 2013a). What matters is the bottom line:
radical reforms were inevitable in the past; and they are inevitable in the
present.

2.2 Human Nature

The second pillar of Legalist political philosophy is their view of human nature.
Legalists eschew the discussion of whether or not human badness or goodness are
inborn, or whether or not all humans possess fundamentally similar qualities. What
matters for them is, first, that the overwhelming majority of human beings are
selfish and covetous; second, that this situation cannot be changed through
education or self-cultivation; and, third, that human beings selfishness can
become an asset to the ruler rather than a threat. That the people go for benefits
as water flows downwards (Shang jun shu 23:131) is a given: the task is to allow
the people to satisfy their desire for glory and riches in a way that will accord
with, rather than contradict, the states needs. Shang Yang explains how to attain
this:

Wherever name/fame and benefit meet, the people will go in this direction.
Agriculture is what the people consider bitter; war is what the people consider
dangerous. Yet they brave what they consider bitter and perform what they consider
dangerous: it is because of calculations [of name and profit]. When benefits come
from land, the people exhaust their strength; when fame comes from war, the people
are ready to die (Shang jun shu 6: 4546).
The people covet wealth and fame; they are afraid of punishments: this is their
basic disposition (qing ?). This disposition is not to be altered but to be
properly understood and then manipulated: When a law is established without
investigating the peoples disposition, it will not succeed (Shang jun shu 8: 63).
To direct the populace toward the pursuits which benefit the state, namely
agriculture and warfare, even though they consider these bitter and dangerous,
one should establish a combination of positive and negative incentives. The entire
sociopolitical system advocated by Shang Yang can be seen as the realization of
this recommendation.

The Legalists view of the people as covetous and selfish was not exceptional to
this intellectual current: it was shared, among others, by as significant a
Confucian thinker as Xunzi ?? (ca. 310230 BCE) as well as by many other thinkers
(Sato 2013). Yet in marked distinction from Xunzi and from other Confucian
thinkers, the Legalists dismissed the possibility that the eliterulers and
ministers alikewould be able to overcome their selfishness. The topic of the
rulers quality will be discussed below; here, suffice it to focus on that of the
ministers. For thinkers from the entire spectrum of Confucian thought, it was
axiomatic that the government should be staffed by morally upright superior men
who would serve out of commitment to the ruler above and the people below. For the
Legalists, it was equally axiomatic that this cannot be the case. Shen Dao
explains:

Among the people, everybody acts for himself. If you [try to] alter them and cause
them to act for you, then there will be none whom you can attain and employ. In
circumstances where people are not able to act in their own interests, those above
will not employ them. Employ the people for their own [interests], do not employ
them for your sake: then there will be none whom you cannot make use of (Shenzi,
2425).

Shen Dao dismisses the possibility that the ministers will be driven by moral
commitment; on the contrary, such exceptional individuals should not be employed at
all. This sentiment recurs in Han Feizi, a text that expresses with utmost clarity
its belief that every member of the elitelike any member of societypursues his
own interests (cf. Goldin 2005: 5865; 2013). Morally upright officials do exist,
but these are exceptional individuals: one cannot find even a dozen upright and
trustworthy men of service (shi ?), while the officials within the boundaries are
counted in hundreds; if one cannot employ but upright and trustworthy men of
service, then there will be not enough people to fill in the offices (Han Feizi
49: 451). This awareness is the source of the thinkers great concern with regard
to the ongoing and irresolvable power struggle between the ruler and the members of
his entourage (see below), and is also a source of Han Feis (and other Legalists)
insistence on the priority of impersonal norms and regulations in dealing with the
ruler-minister relations. Proper administrative system should not be based on trust
and respect for ministers; rather they should be tightly controlled. A political
system that presupposes human selfishness is the only viable political system.

3. Tillers and Soldiers: Ruling the People

One of the (in)famous controversial dictums in the Book of Lord Shang states: When
the people are weak, the state is strong; hence the state that possesses the Way
strives to weaken the people (Shang jun shu 20: 121). Elsewhere, the text
specifies:

In the past, those who were able to regulate All-under-Heaven first had to regulate
their people; those who were able to overcome the enemy first had to overcome their
people. The root of overcoming the people is controlling the people as the
metalworker does metal, and the potter clay. When the roots are not firm, the
people will be like flying birds and running animals: who will be able to regulate
them then? The root of the people is law. Hence, those who excel at orderly rule
bar the people with law; then they are able to attain fame and lands. (Shang jun
shu 18: 107)

These and many similar sayings explain Shang Yangs image as a people-basher. No
other thinker was as explicit as he in pointing at the persistent contradiction
between society (the people) and the state. The peoples intrinsic selfishness
constantly endangers social order; and to safeguard this order, the ruler should
resolutely rein in his subjects through the law (fa ? in this context refers
primarily to punitive laws). The state should tightly control its subjects: the
system of mandatory registration of the population and creation of mutual
responsibility groups among the populace will ensure that every crime is denounced
and the criminalparticularly those who abscond from the battlefieldwill know that
there is nowhere to flee from the army ranks, and the escapees can find no refuge
(Shang jun shu 18: 108). Moreover, to overawe the people, the text advocates
inflicting heavy punishments for even petty offenses, as only then will the people
be sufficiently scared as to behave properly. Eventually, harsh punishments will
eliminate the very need for punishments:

To prevent wrongdoing and stop transgressions, nothing is better than making

punishments heavy. When punishments are heavy and [criminals] are inevitably
captured, then the people dare not try [to break the law]. Hence, there are no
penalized people in the state. When there are no penalized people in the state, it
is said, then: Clear punishments eliminate executions. (Shang jun shu 17: 101)

Due to above pronouncements, Shang Yang gained notoriety as an advocate of

oppression; but actually his attitude toward the people is much more balanced than
is often imagined. The Book of Lord Shang frequently speaks of loving/caring for
the people (ai min ??) and benefiting the people (li min ??), echoing other
contemporaneous texts which proclaimed the peoples well-being as the ultimate goal
of policy-making (Pines 2009: 201-203). The people are not just the potential enemy
of the ruler: they are his major asset. Without their harsh labor in the fields or
their bravery on the battlefield, the state is doomed. Yet the people will not
embrace tilling and waging war just out of fear of coercion. A more complex system
is needed: one that will introduce attractive positive incentives along with awe-
inspiring negative ones. Shang Yang explains:

The disposition of the people is to have likes and dislikes; hence the people can
be ruled. The ruler cannot but investigate likes and dislikes. Likes and dislikes
are the root of awards and penalties. The disposition of the people is to like
ranks and emoluments and dislike punishments and penalties. The ruler sets up the
two in order to guide the peoples will and to establish whatever he desires.
(Shang jun shu 9: 65)

Punishments and penalties can deter the people from misbehavior, but to encourage
them to do whatever the ruler desires, positive incentivesranks and
emolumentsare no less important. The rulers major goal, as Shang Yang reiterates
incessantly, is to turn his subjects into diligent farmers and valiant soldiers.
This can be attained only if engagement in these bitter and dangerous occupations
will be the exclusive way to secure material riches and glory. This understanding
stands at the background of Shang Yangs most celebrated reform: the replacement of
Qins traditional hereditary aristocratic order with the new system of ranks of
merit.
The system of 20 (initially fewer) ranks of merit introduced by Shang Yang was
one of the most daring acts of social engineering in human history. This system
became the cornerstone of social life in Qin. The lowest ranks were distributed for
military achievements, particularly decapitating enemy soldiers, or could be
purchased in exchange for extra grain yields; successful rank-holders could be
incorporated into the military or civilian administration and thereafter be
promoted up the social ladder. Each rank granted its holder economic, social, and
legal privileges; and since the ranks were not fully inheritable, the system
generated considerable social mobility (see details in Loewe 1960 and 2010; Pines
et al. 2014: 2426). The new system attempted to unify the social, economic, and
political hierarchy under the governments control, which in turn required the
elimination of alternative avenues of enhancing ones socioeconomic and political
status. This latter concern is strongly pronounced throughout the Book of Lord
Shang:

The means through which the sovereign encourages the people are offices and ranks;
the means through which the state prospers are agriculture and warfare. Now, the
people seek offices, but those are attainable not through agriculture and warfare
but through crafty words and hollow ways: this is what is called to exhaust the
people. (Shang jun shu 3: 20).

The text insists repeatedly that the only way to make agriculture and warfare
attractive is to prevent any alternative route toward enrichment and empowerment.
It specifies that those who do not work but eat, who do not fight but attain
glory, who have no ranks but are respected, who have no emoluments but are rich,
who have no offices but lead: these are called scoundrels (Shang jun shu 18:
111). Any group which tries to bypass engagement in agriculture and warfarebe
these merchants who amass riches without tilling or talkative intellectuals who
seek promotion without contributing to the state economically or militarilyshould
be suppressed or at least squeezed out of profits. Nothingneither learning, nor
commerce, nor even artisanshipshould distract the people from farming and making
war. The text summarizes:

Hence, my teaching causes those among the people who seek benefits to gain them
nowhere but through tilling; and those who want to evade disasters escape through
no other means but war. Within the borders, everyone among the people first devotes
himself to tilling and warfare, and only then obtains whatever pleases him. Hence,
though the territory is small, grain is plenty, and though the people are few, the
army is powerful. He who is able to implement the two of these within the borders
will accomplish the way of Hegemon and Monarch. (Shang jun shu 25: 139)

4. Maintaining the Bureaucracy

To rule and control the people effectively, the government should rely on an
extensive bureaucracy; but this bureaucracy in turn should be properly staffed and
tightly monitored. It is with this regard that the Legalists made a lasting
contribution to Chinas administrative thought and administrative practices. Their
strongly pronounced suspicion of scheming ministers and selfish officials was
conducive to the promulgation of impersonal means of recruitment, promotion,
demotion, and performance control. These means became indispensable for Chinas
bureaucratic apparatus for millennia to come (Creel 1974).

4.1 Recruitment and Promotion

One of the primary issues that the rulers of the Warring States faced was that of
recruitment into government service. During the aristocratic Springs-and-Autumns
period, the overwhelming majority of officials were scions of hereditary
ministerial lineages; only exceptionally could outsiders join the government. This
situation changed by the fifth century BCE, as aristocratic lineages were largely
eliminated in internecine struggles and members of lower nobilitythe so-called
men of service, shi ?could advance up the ladder of officialdom. It was then
that the new meritocratic discourse of elevating the worthy (shang xian ??)
proliferated and upward social mobility became legitimate (Pines 2013c). Yet who
were the worthy and how to determine ones worthiness was a matter of
considerable uncertainty and confusion. While certain texts presented highly
sophisticated ways of discerning the employees true worth (Richter 2005), their
recommendations required exceptional perspicacity of an employer and were largely
impractical. Instead, the most popular way of recruitment was based on a notion of
recognition of ones worth (Henry 1987): an employee was recommended to the ruler
(or to a high official), interviewed, and then his worth was recognized and high
position assigned. This widespread practice was deeply resented by the Legalists.
The very idea of reliance on vague concept of worthiness and on personal
impression of the ruler as the primary means of recruitment was in their eyes
fundamentally flawed, because it allowed manifold manipulations. Shang Yang
explains why worthiness based on ones reputation is an intrinsically problematic
concept:

What the generation calls a worthy is one who is defined as upright; but those
who define him as upright are his associates (dang ?). When you hear [them] talking
about him, you consider him able; when you ask his associates, they approve. Hence,
one is ennobled before one has any merits; one is punished before one has committed
a crime. (Shang jun shu 25: 136137)

Worthiness is too vague and too prone to manipulation by partisans to serve as an

adequate means of promotion; and relying on ones reputation or on an interview
with the ruler are equally flawed methods. Similar views are echoed in Han Feizi
and in other legalist texts, such as Relying on Standards (Ren fa ??) chapter
of Guanzi (Rickett 1998: 144151). Shen Dao further warns the ruler that if he
decides on promotions and demotions on the basis of his personal impression, this
will cause inflated expectations or excessive resentment among his servants:

When the ruler abandons the standard (fa ?) and relies on himself to govern, then
punishments and rewards, recruitment and demotion all arise out of the rulers
heart. If this is the case, then even if rewards are appropriate, the expectations
are insatiable; even if the punishments are appropriate, lenience is sought
ceaselessly. If the ruler abandons the standard and relies on his heart to decide
upon the degree [of awards and punishments], then identical merits will be rewarded
differently, and identical crimes will be punished differently. It is from this
that resentment arises. (Shenzi, 52)

Decisions on matters of promotion and demotion should never be based on the rulers
heart; not only because he can be misled and manipulated by unscrupulous aides, but
also because any decisioneven if correct onewhich is not based on impersonal
standards will cause dissatisfaction among his underlings (see more in Harris,
forthcoming). An alternative will be a set of clear impersonal rules that will
regulate recruitment and promotion of officials. For Shang Yang, recruitment will
be based on the ranks of merit. Han Fei remains doubtful about these: after all,
why should valiant soldiers who gained ranks of merit become good officials? Han
Fei himself does not solve the problem of initial recruitment but develops ways to
monitor subsequent promotion of an official:

Thus, as for the officials of an enlightened ruler: chief ministers and chancellors
must rise from among local officials; valiant generals must rise from among the
ranks. One who has merit should be awarded: then ranks and emoluments are bountiful
and they are ever more encouraging; one who is promoted and ascends to higher
positions, his official responsibilities increase, and he performs his tasks ever
more orderly. When ranks and emoluments are great, while official responsibilities
are dealt with in an orderly waythis is the Way of the Monarch. (Han Feizi 50:
460)

Promotion should be dissociated once and for all from the rulers (or his
ministers) personal judgments. One should simply check an incumbents performance
on the lower level of bureaucracy, and promote him to higher positions with ever
more responsibilities. This objective process of promotion according to measurable
and objective merits became one of the hallmarks of the Chinese administrative
system throughout the imperial era and beyond.

4.2 Monitoring Officials: Technique of Government

Rewards and punishments (primarily promotion and demotion) are the major handles
through which the ruler has to control his officials. But how to judge their
performance? Here the Legalists put forward the idea of xing ming ??: performance
and title. Although this compound is attested only in Han Feizi, throughout the
Former Han dynasty it was most commonly identified with what we nowadays call
Legalism. Han Fei explains what he means by xing ming:

Performance and title refers to statements and tasks. The minister presents his
statement; the ruler assigns him tasks according to his statement, and evaluates
his merits exclusively according to the task. When the merit is in accordance with
the task, and the task is in accordance with the statement, then [the minister] is
awarded; when the merit is not in accordance with the task, and the task is not in
accordance with the statement, then he is punished. (Han Feizi 7: 4041)

The proposed way of estimating the officials performance is not entirely

reasonable (why punish a minister for over-performing?) but at least it tries to
establish firm criteria of evaluation, which in this case are related to the
ministers own bid (Goldin 2013: 810). The advantages are clear: the system will
prevent ministerial manipulations and will reaffirm the rulers control over his
officials. This latter point is of particular importance to the Legalists. Various
means through which the ruler should monitor the ministers are named in Han Feizi
and other Legalist texts as technique (shu ?) or rules (sh ?) (the meaning of
both terms may overlap: Creel 1974: 125134; Yang 2010). Both terms are similar to
fa but are narrower in their meaning, referring primarily to a variety of means
through which the ruler controls his officials. Han Fei claims that shu is the
hallmark of Shen Buhais ideas, and explains its meaning as follows:

Technique is to give official positions in accordance with ones responsibility, to

investigate reality in accordance with the name, to hold the handles of death and
life, to assess the abilities of every minister. This is what the ruler should
hold. (Han Feizi 43: 397)

This passage explains the general principles of Shen Buhais techniques but does
not detail how they functioned. Techniques and rules are referred in Legalist
texts as the best means of preserving the rulers control: the enlightened ruler
relies on these, while the benighted one in contrast casts these away and
subsequently is misled by his ministers delusive words and by persuaders
inducements (shui ?). Yet amid the strong emphasis on the power of techniques,
rules, laws, and regulations, we can discover the sober realization that even these
are not always enough, and that a perfect administrative system simply cannot come
into existence. Thus, in one of the later chapters of the Book of Lord Shang it is
said:

Nowadays, [the ruler] relies on many officials and numerous clerks; and to monitor
them establishes assistants and supervisors. Assistants are placed and supervisors
are established to prohibit [the officials] from pursuing [personal] profit; yet
assistants and supervisors also seek profit, so how they will able to prohibit it?
(Shang jun shu 24: 133)

This appears to be a rare insight concerning the administrative systems

fundamental inability to monitor itself in the long term; yet the observation does
not lead to any radical alternatives to the system of supervision over officials.
The chapter simply reasserts the superiority of techniques and rules over the
rulers personal intervention in policy-making and does not explain how these would
prevent the supervisors machinations. Insofar as techniques and rules are
implemented by self-interestedor simply erringhuman beings, the question remains:
to what extent can the impersonal mode of rule cure the intrinsic maladies of the
bureaucratic system (cf. Van Norden 2013)? This question remains one of the major
challenges to the Legalists legacy.

5. The Ruler and his Ministers

Not a few scholars consider Legalists in general and Han Fei in particular as
staunch theorists of monarchic despotism (Hsiao 1979: 386). This evaluation
should be qualified, though. What distinguishes Han Fei and his ilk from other
thinkers is neither his insistence on the monarchic form of rule as singularly
appropriate, nor adoration of the sovereigns authority; actually, on these points
the Legalists do not differ from most other intellectual currents of their age
(Pines 2009: 25107). Rather, their distinctiveness was in their pronounced anti-
ministerial stance. This stance is exemplified by the following saying of Shen
Buhai:

Now the reason why a ruler builds lofty inner walls and outer walls, looks
carefully to the barring of doors and gates, is [to prepare against] the coming of
invaders and bandits. But one who murders the ruler and takes his state does not
necessarily climb over difficult walls and batter in barred doors and gates. [He
may be one of the ministers, who] by limiting what the ruler sees and restricting
what the ruler hears, seizes his government and monopolizes his commands, possesses
his people and takes his state. (Creel 1974: 344, translation modified)

This warning epitomizes what may be considered the major dividing line between
Legalists and their opponents. Despite their pronounced belief in monarchic form of
rule, most thinkers of the Warring States period insisted that the monarch would
never succeed without a worthy aide. Their common desideratum was attaining
harmonious relations between the ministers and the rulers; not coincidentally, the
common simile of these relations was that of friends, i.e. of equals. Some thinkers
were even more assertive in their interpretation of a worthy minister as the
rulers de facto superior, a teacher and not just a friend (Pines 2009: 163172).
One of the most radical manifestations of this pro-ministerial mindset of the
Warring States era was the idea of abdication, according to which a good ruler may
consider yielding the throne to his meritorious aide (Allan 1981; Pines 2005). For
Legalists, in contrast, this very idea proved that the pro-ministerial discourse of
their rivals was usurpation in disguise. Ministers should never be trusted: they
are neither the rulers friends, nor his teachers, but his bitter foes and
plotters, who should be checked and controlled rather than cherished and empowered.
This sober realizationpromoted, ironically, by the members of the ministerial
stratumadded certain tragic dimensions to the Legalists political theory.
5.1 The Rulers Superiority

Legalists shared the conviction of most other political theorists of the Warring
States period: stability and orderly rule in either the individual state or All-
under-Heaven can be attained only under an omnipotent monarch. They added a few
new dimensions to this overarching monarchistic discourse. For instance, in Shang
Yangs model of state formation, the establishment of the ruler is presentedin
contrast to Mozi (see the section on Political Theory in the entry on Mohism)not
as a starting point, but as the crowning stage of sociopolitical evolution, the
final and singularly important step toward stability. The ruler is the only person
who represents common interests of the polity (gong ?, commonality, actually is
an identical word to the lord; cf. Goldin 2013: 34). As such, his power is
conceived not as the means of personal enjoyment but as the common interest of his
subjects. Shen Dao elaborates:

In antiquity, the Son of Heaven was established and esteemed not in order to
benefit the single person. It is said: When All under Heaven lacks the single
esteemed [person], then there is no way to carry out the principles [of orderly
government, li ?]. Hence the Son of Heaven is established for the sake of All
under Heaven, it is not that All under Heaven is established for the sake of the
Son of Heaven. Even if the law is bad, it is better than absence of laws; thereby
the hearts of the people are unified. (Shenzi, 16).

Shen Dao presents his political credo with rare clarity. A ruler is crucial for the
proper functioning of the political system; he is the real foundation of political
order, not a beneficiary but rather a servant of humankind. Significantly, the
ruler attains these blessed results by the sheer fact of his existence and not due
to his morality or intelligence. As Shen Dao clearly states, bad laws are better
than a lawless situation, and we may infer that a bad ruler is better than anarchy.
What mattersas Shen Dao explains elsewhereare not the rulers individual
qualities but his ability to preserve his positional power (or power of
authority, shi ?). As long as the ruler preserves his power intact, i.e., by
refraining from delegating it to ministers and preserving the singularity of
decision-making in his own hands, the political system will act well. Otherwise,
turmoil is inevitable. Shen Dao warns:

When the Son of Heaven is established, he should not let the regional lords doubt
[his position]; when a lord is established, he should not let nobles doubt [his
position]; Doubts bring commotion; doubleness [of the sources of authority]
brings contention, intermingling brings mutual injury; harm is from sharing, not
from singularity (Shenzi, 4748).

Shen Buhai echoes Shen Dao: He who is a singular decision-maker can become the
sovereign of All under Heaven (Creel 1974: 380, translation modified).

Why is the singularity of the rulers position so important? It is because by the

sheer fact of his exclusive authority, the ruler is able to arbitrate conflicts
among his ministers and to preserve the chain of command in his state, without
which the state may collapse. This explains also the Legalists emphasis on
absolute obedience to the rulers commands, epitomized by the dictum to punish a
minister who disobeyed commands even if the results of his actions were successful
(Guanzi 45: 913; Rickett 1998: 150). Similarly, the above mentioned dictum in Han
Feizi to punish an over-performing minister may be understood in this context: fear
of a ministers high ambitions and of his potential disobedience outweighs other
considerations. The rulers exclusivity and omnipotence is the sine qua non of
proper political order. Preserving and strengthening his authority is the
Legalists singularly pronounced political commitment.
5.2 Entrapped Sovereign?

The Legalists strong adherence to the principles of monarchism is self-evident;

but it is not free of manifold tensions and contradictions. Those are fully
epitomized in Han Feis thought. Han Fei shared his predecessors view of the ruler
as the pivot of sociopolitical order, the sole guarantor of stability and
prosperity of his subjects; yet he was also bitterly aware of the rulers
inadequacy. The very fact that the monarchunlike his officialsowes his position
to pedigree alone means that this position will more often than not be occupied by
a mediocrity. Multiple historical examples scattered throughout Han Feizi
unequivocally demonstrate how devastating the rulers ineptitude can be (Graziani,
forthcoming). The intrinsic contradiction between an institutionally infallible and
humanly erring sovereign is the major source of tension in the Han Feizi (Pines
2013b).

Thinkers of different ideological inclinations shared the sober realization that a

sovereign may be a mediocrity; yet for them this problem was easily resolvable.
Insofar as the ruler would be prudent enough to entrust everyday affairs to a
meritorious aide, he would be able to continue enjoying absolute prestige, while
practical matters would be decided by worthy ministers (see, e.g., Xunzi 11:
223224). For Han Fei, though, this solution is unacceptable. Time and again he
warns the ruler that nobody can be trusted: the rulers wife, his beloved
concubine, his eldest son and heirall hope for his premature death because this
may secure their position. Threats come also from the rulers brothers and cousins,
from uncles and bedfellows, from dwarfs and clowns who entertain him, from dancers
in his court; and, of course from the talkative men-of-service (shi) who conspire
with foreign powers to imperil his state. Every single person around the throne
should be suspected; and minimal negligence can cost a ruler his life and his
power. And the most dangerous foes are precisely those whom other thinkers
considered the rulers friends and teachers, namely his closest aides, his
ministers. Han Fei compares them to hungry tigers ready to devour the sovereign
whenever the opportunity arrives:

The Yellow Emperor said: A hundred battles a day are fought between the superior
and his underlings. The underlings conceal their private [interests], trying to
test their superior; the superior employs norms and measures to restrict the
underlings. Hence when norms and measures are established, they are the sovereigns
treasure; when the cliques and cabals are formed, they are the ministers treasure.
If the minister does not murder his ruler, it is because the cliques and cabals are
not formed. (Han Feizi 8: 51)

This is an amazing saying: the minister is, by his nature, deceitful and murderous,
and his failure to eliminate the sovereign is simply a sign of insufficient
preparations, not of unwillingness to do so. The ministers threat to the monarch
is inherent in their position, and it can be defused only through proper
implementation of methods and techniques of rule.

Han Feis repeated anti-ministerial philippics perplex the reader. It is somewhat

ironic that a thinker who actively sought employment in the rulers courts
presented his own stratum as intrinsically malicious. As many traditional and
modern scholars noticed, Han Feis personal tragedyhe was slandered at the court
of Qin, imprisoned and reportedly forced to commit suicide before being able to
present his views to the King of Qinwas a by-product of the very atmosphere of the
ruler-minister mistrust that the thinker himself generated. But going beyond this
personal tragedy there is a more general question: how can the ruler maintain his
functions in the situation of permanent danger and absolute mistrust between him
and his aides?
Han Feis immediate answer is that the ruler should protect himself through careful
employment of the techniques of government depicted above. He should check his
ministers reports, investigate their performance, promote or demote them according
to the match between performance and the name; he should remain calm and
secretive and let them expose themselves; he should encourage mutual spying and
denouncement among his ministers. But this supposedly neat solution is problematic.
First, it requires at times superhuman intellectual abilities of the ruler, in
direct contradiction to Han Feis own insistence that his system fits an average
(i.e., mediocre) sovereign (Han Feizi 40: 392). Second, it remains unclear how the
ruler will gain access to reliable information if each of his close aidesas Han
Fei reminds himis a potential cheater (Han Feizi 6: 3637). And third, a system
which requires permanent surveillance of everybody can easily fall into a trap of
totalitarian regimes in which each agent charged with inspecting and observing
must logically be subject to inspection and observation himself (Graziani,
forthcoming). Han Feis clear-sightedness with regard to ministerial machinations
is remarkable, but it eventually entraps the sovereign in the nightmarish situation
of comprehensive suspicion and mistrust.

Yet scheming ministers aside, the sovereign should beware of his own mistakes,
which may be even worse than his foes plans. The monarch is the most revered
individual, but also the weakest chain in the government apparatus. He can be duped
by his underlings, is prone to misjudge them, and his actions may frequently
endanger the very foundations of political order that he is supposed to safeguard.
Hence, the thinker repeatedly urges the ruler to refrain from any personal
activities, any reliance on personal knowledge, and any manifestation of personal
likes and dislikes. He who relies on personal abilities is the worst ruler; When
the sovereign abandons the law and behaves selfishly, there is no difference
between the rulers and the ruled; When the ruler has selfish kindness, the ruled
have selfish desires (Han Feizi 48: 432; 6: 32; 45: 414 et saepe). The ruler
should refrain from any action; echoing the Laozi ??, Han Fei urges him to remain
empty and tranquil (Han Feizi 5: 27). The thinker summarizes his recommendations:

The ruler does not reveal his desires; should he do so, the minister will carve and
embellish them. He does not reveal his views; should he do so, the minister will
use them to present his different [opinion]. The way of the enlightened sovereign
is to let the knowledgeable completely exhaust their contemplationsthen the ruler
relies on them to decide on matters and is not depleted of knowledge; to let the
worthy utilize their talentsthen the ruler relies on them, assigns tasks, and is
not depleted of abilities. When there is success, the ruler possesses a worthy
[name]; when there is failure, the minister bears the responsibility. (Han Feizi 5:
27)

This is a curious recommendation: the ruler should completely nullify himself both
in order to preserve his authority against scheming ministers, and to
acquireunjustly!a good name at the ministers expense. Yet this sovereign, who
has neither desires nor observable views, becomes the ultimate slave of his office.
For the sake of self-preservation he must abolish his personality, being completely
submerged by the system which he ostensibly runs. A.C. Graham provocatively notices
that the ruler in Han Feis system has no functions which could not be performed
by an elementary computer. Might one even say than in Han Feis system it is
ministers who do the ruling? (Graham 1989: 291). This paradox of an entrapped
sovereign, who enjoys God-like omnipotence, but who is required to refrain from any
activism in order to preserve this omnipotence is one of the most fascinating
manifestations of the intrinsic contradiction of the authoritarian system. When it
comes from a thinker who is often described as singularly authoritarian-minded, it
deserves utmost attention.
6. Assault on Culture and Learning

In the twentieth century not a few scholars dubbed Legalists totalitarians (e.g.,
Creel 1953: 135158; Rubin 1976: 5588; Fu Zhengyuan 1996). Some of the aspects of
the Legalist programa powerful state that overwhelms society, rigid control over
the populace and the administrative apparatus, harsh laws, and the likeseem to
lend support to this equation. Yet when we move to the realm of thought controla
sine qua non for a true totalitarian politythe results are somewhat equivocal.
While Shang Yang and Han Fei have much to say on matters of culture and learning,
their message is predominantly negative: they eagerly expose the fallacies of their
opponents views, but do not necessarily provide an ideological alternative of
their own.

Shang Yang is particularly notorious for his comprehensive assault on traditional

culture and on moral values. The Book of Lord Shang abounds with controversial and
highly provocative statements like this one:

Poems, Documents, rites, music, goodness, self-cultivation, benevolence,

uprightness, argumentativeness, cleverness: when the state has these ten, the
superiors cannot force the people to [engage in] defense and warfare. If the state
is ruled according to these ten, then when the enemy arrives it will be
dismembered, and when the enemy does not arrive, it will be impoverished. If the
state eradicates these ten, then the enemy will dare not to arrive, and even if he
arrives, he will be repelled; when the army is raised and sent on a campaign it
will seize [the enemys land]; while if the army is restrained and does not attack,
the state will be rich. (Shang jun shu 3: 23)

This and similar pronouncements, as well as the texts derisive language (it dubs
moral values as lice ?), explain why Shang Yang gained notoriety in the eyes of
imperial literati, as well as many modern scholars, as an enemy of morality. Yet
this conclusion should be qualified. The alienating rhetoric, an example of which
is cited above, is concentrated only in a few chapters of the Book of Lord Shang;
most other display more accommodative views toward traditional moral values; some
even promise that the sage ruler would be able to implement benevolence and
righteousness in All under Heaven (Shang jun shu 13: 82; see also detailed
discussion in Pines 2012). It seems that the text assaults not morality as such but
rather moralizing discourse. It is this discourseor more precisely its bearers,
the peripatetic men of service who seek employment at the rulers courtswhich
arouse Shang Yangs indignation.

Shang Yang deplores traveling intellectuals because they damage the foundations of
his sociopolitical model. By gaining official positions and emoluments outside the
carefully designed system of ranks of merit, they undermine the peoples commitment
to agriculture and warfare.

When one thousand people are engaged in agriculture and war, yet there is a single
man among them engaged in Poems, Documents, argumentativeness and cleverness, then
one thousand people all will become remiss in agriculture and war. This is the
doctrine of impoverishing the state and weakening the army. (Shang jun shu 3:2226)

It is worth noticing that Shang Yangs dislike of traveling persuaders is less

related to the content of their doctrines but rather focuses on their negative
impact on the peoples mores. The very fact that talkative intellectuals are being
promoted distracts the people from substantial occupations and causes them
engagement in hollow talk and needless learning. Moreover, intellectuals, with
their sophisticated ideas, destroy the peoples simple-mindedness (pu ?), making
the latter less diligent and more difficult to control. Thus, both economically and
politically, learning is harmful: it distracts the people from their diligent work
and diminishes their submissiveness.

This said, the Book of Lord Shang does speak at times of teaching or
indoctrination (jiao ?). Yet normally, this term refers not to imposition of a
new set of values, but rather to the internalization of the governments
regulations, which would allow the people to comply with the governments
requirements without the need in coercion (cf. Sanft 2014). In a major discussion
of jiao, the text says:

What is called unification of teaching is that fathers and elder brothers,

younger brothers, acquaintances, relatives by marriage, and colleagues all say:
What we should be devoted to is just war and that is all. This is what I, your
minister, call unification of teaching. The peoples desire to wealth and
nobility stops only when their coffin is sealed. And the gates of riches and
nobility must be [entered exclusively] through military [service]. Therefore, when
they hear about war, the people congratulate each other; whenever they move or
rest, drink or eat, they sing and chant only about war. (Shang jun shu 17: 105)

Teaching the people to sing and chant only about war could easily refer to
military indoctrination, such as we encounter in other countries that employed mass
armies. Yet the Book of Lord Shang never speaks of, e.g., adoration of martial
spirit, dehumanization of the enemy, identifying martiality with masculinity, and
similar devices employed in militaristic education elsewhere. Rather, for Shang
Yang teaching means simply the peoples internalization of the fact that the only
way to satisfy their desires for riches and glory is to excel in war. Hence war,
which elsewhere in the book is frankly associated with what the people hate (Shang
jun shu 18: 108), becomes the focus of the peoples aspirations. Teaching is then
not about ideological indoctrination; it is just about willful compliance with the
governments policies.

Han Feis views of traditional culture and of learning echo Shang Yangs, but he is
even more vehement in his dislike of traveling scholars who rise up the
sociopolitical ladder by selling their ideas to the rulers and to high ministers.
He repeatedly ridicules rulers who are fond of argumentativeness and of crafty
words: they employ proponents of mutually exclusive doctrines just out of
admiration of their rhetorical skills, and without any consideration of the
doctrines political worth. Han Fei advises:

Now, when the ruler listens to [a certain] teaching, if he approves of its

doctrine, he should promulgate it among the officials and employ its adherents; if
he disapproves of its doctrine, he should dismiss its adherents and cut it off.
(Han Feizi 50: 459)

This proposal amounts to nationalization of intellectual activity. Han Fei does

not deny in principle that some of the rival doctrines may benefit the state; he
just denies their proponents the right to develop and elaborate their views
independently of the state. Han Fei leaves his rivals no illusions: intellectuals
can pursue their ideas only insofar as they are part of the state-ordained system
of power, otherwise their ideas will be cut off. Elsewhere, he concludes:

Accordingly, in the country of an enlightened ruler there are no texts written in

books and on bamboo strips, but the law is the teaching; there are no speeches of
the former kings, but officials are the teachers; there is no private wielding of
swords, but beheading [enemies] is valor. (Han Feizi 49: 452)
Han Feis suggestion to eliminate texts written in books and on bamboo strips and
to turn officials into teachers was implemented by his fellow student and nemesis,
Li Si, soon after the imperial unification of 221 BCE. In 213 BCE, after heated
court debates, Li Si launched a comprehensive assault on private learning, which
he identified as intellectually divisive and politically subversive. He then
suggested eliminating copies of the canonical books of Poems and Documents, as well
as Speeches of the Hundred Schools [of thought] from private collections, leaving
copies only in the possession of the court erudites (bo shi ??). Li Si concluded
his proposal by echoing Han Feis views: And those who want to study laws and
ordinances, let them take an official as a teacher! (Shiji 87: 2546).

Li Sis assault on private learning is often misinterpreted as the victory of

Legalist over Confucian ideology, but this is wrong. Confucianism as such was
not targeted; actually, it prospered among the court erudites (Kern 2000: 188191).
What mattered to Li Sias to Han Feiwas not doctrinal unity as such, but the
imposition of the state control over intellectual life, as in all other spheres of
social activity. Intellectuals were not persecuted because of the content of their
ideas; but they were required either to enter government service or to quit their
pursuits. Eventually, Li Sis biblioclasm backfired. It caused not only
considerable resentment in the short term, but, more ominously, brought about
immense dislike of Qinand of Legalismamong the overwhelming majority of the
imperial literati for millennia to come (Pines 2014a).

7. Epilogue: Legalism in Chinese History

Qin unification of 221 BCE could have become the triumph of Legalism. The rise of
the state of Qin started with Shang Yang; and it was by following his agriculture
cum warfare course of action that this state became rich and powerful enough to
subdue its formidable enemies. Many aspects of Qins policy before the imperial
unification and in its aftermathsuch as the creation of an intrusive government
apparatus, tight supervision over officials, reliance on impartial laws and
regulations, and the likewere designed by Shang Yang, Shen Buhai, Han Fei, and
their like. And these policies brought about unprecedented success: after five
centuries of unending warfare, the entire realm under Heaven was unified under a
single ruler! Proud of his success, the First Emperor (r. 221210 BCE) toured his
newly acquired empire, erecting stone steles on the sites of sacred mountains; in
the stele inscriptions he boasted of bringing unity, peace, stability, and orderly
rule (Kern 2000; Pines 2014b). Dreams of generations of preimperial thinkers were
realized, and this was done primarily through following the recipes of those whom
we dub today Legalists.

Yet history was cruel to the Legalists: the Qin dynasty (221207 BCE), which was
designed to rule for myriad generations (Shiji 6: 236), collapsed shortly after
the founders death, brought down by a popular rebellion of unprecedented scope and
ferocity. This swift collapsewhich took place just a few years after Li Sis
infamous biblioclasmshaped the image of Qin for millennia to come. The dynasty was
no longer a success story, but rather that of miserable failure; and the ideas
which guided its policymakers were discredited as well. Already in the first
generations after the Qin, consensus was reached: its collapse was due to excessive
activism, abnormal assertiveness of its administrative apparatus, over-reliance on
penalties, senseless expansionism, and debilitating mistrust between the emperors
and their entourage (Shiji 6: 276284; Xin yu 4: 62). All these policies could be
meaningfully attributed to the Legalists, whose intellectual legacy was as a result
discredited. At best it was reduced to Sima Tans assessment: a one-time policy
that could not be constantly applied.

The diminishing appeal of Legalism became fully visible under the reign of Emperor
Wu of the Han (r. 14187 BCE). While the Emperor himself adopted assertive domestic
and foreign policies largely patterned after the Qin dynasty, he considered it
prudent to distance himself from the Qin and Legalism, and to endorsehowever
superficiallyConfucianism. It was during his reign that first proposals were made
to ban the followers of Shang Yang, Shen Buhai, and Han Fei from holding office.
Although in the short term these proposals had limited consequences (Shang Yangs
legacy was still openly defended by the government representative during the court
debates in 81 BCE), in the long term the attitude toward Legalists changed. Few
scholars studied their writings; even fewer were courageous enough to endorse their
legacy openly. Much like Qin itself (for which see Pines 2014a), Legalism
henceforth became a negative label, associated with the policies immensely opposed
by the majority of imperial literati: excessive harshness, oppression, terror at
court, imperial hubris, and the like. Self-identification as a follower of Shang
Yang or Han Fei became a rarity, if not an impossibility.

In imperial times, the position of Legalism was somewhat paradoxical. On the one
hand, its ideas remained highly influential, especially in the realm of
administrative practice, but also with regard to the policies of the enrichment and
empowerment of the state, as well as in some legal practices. On certain occasions,
some of the leading imperial reformersfrom Zhuge Liang ??? (181234) to Su Chuo ??
(498546), from Wang Anshi ??? (10211086) to Zhang Juzheng ??? (15251582)could
openly recognize their indebtedness to the Legalist ways of reinvigorating the
government apparatus and restoring the states economic and military prowess. On
the other hand, most political reformers and activists remained closet Legalists at
best. For the vast majority of the literati, Shang Yang, Han Fei, and their like
were negative examples; hence, most of the texts associated with the Legalist
school ceased circulating, and only a very few merited commentaries. Overt
endorsement of Shang Yang, for instance, would be all but impossible for a
respected man of letters.

It was only at the turn of the twentieth century that Legalism was rediscovered and
partly rehabilitated by the new generations of intellectuals. Frustrated by Chinas
inability to reconstitute itself in a modern world as a powerful state with a
strong army, young intellectuals began searching for a variety of non-traditional
responses to domestic and external challenges; among these, some turned toward
Legalism. It was deemed relevant not only because it had demonstrable practical
achievements in the past, but also because of its innovativeness, willingness to
depart from the patterns of the past, and even its quasi-scientific outlook. For
instance, the first major promulgator of interest in Shang Yangs thought, Mai
Menghua ??? (18741915), was positively attracted by the surprising similarity
between Shang Yangs views of history and evolutionary ideas of Occidental social
theorists (Li Yu-ning 1977: lviii-lix). Even such a major liberal thinker as Hu Shi
?? (18911962) was willing to forgive the Legalists their notorious harshness and
oppressiveness, hailing Han Fei and Li Si for their brave spirit of opposing those
who do not make the present into their teacher but learn from the past (Hu Shi
1930: 6.48081). Slightly later, it was no less a figure than Hu Hanmin ???
(18791936), one of the most eminent Guomindang ??? (Kuomintang, KMT, Party of the
Nation) leaders, who wrote a preface to a new edition of the Book of Lord Shang
(Hu Hanmin 1933).

The endorsement of Legalism peaked under Mao Zedong ??? (18931976). Maos
intellectual activism started, incidentally, with a high-school essay written in
praise of Shang Yang (Schram 19922004, Vol. 1: 56), and his positive view of
Shang Yang and of the Qin dynasty strengthened as time passed. In the last years of
Maos life, under the infamous anti-Confucian campaign, Legalism was openly
endorsed and hailed as progressive intellectual current both in its outlook and
its historical role (Li Yu-ning 1977); attempts were even made to position it as a
direct predecessor of Mao Zedongs Thought (see, e.g., Liu Zehua 2012).

After Maos death, this grotesque politicization of Legalism discontinued. While in

the 1980s Legalism still could surface in Chinas intellectual debates about paths
that the country needed to take, and while echoes of Chinese polemics could be
heard in the West as recently as the 1990s (Fu Zhengyuan 1996), this usage of the
past to criticize the present gradually receded. With it, studies of Legalist
thought receded as well, especially in the West and in Japan, but to a certain
extent also in China. Most recently, this trend is changing, and the academic
community is rediscovering the richness of Legalist thought. Without excessive
endorsement or disparagement, scholars can investigate this set of ideas, which was
highly effective in the context of the Warring States period, but proved less
applicable to other historical circumstances.

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