| Legalism | |
| Pic: | Shangyang.jpg |
| Piccap: | Statue of the legalist Shang Yang |
| Picsize: | 200px |
| Showflag: | pw |
| C: | 法家 |
| L: | School of law |
| P: | Fǎjiā |
| Tp: | Fǎ-jia |
| Bpmf: | ㄈㄚˇ ㄐㄧㄚ |
| J: | faat3 gaa1 |
| Y: | Faatgā |
Fajia, or the School of fa (laws,methods), often translated as Legalism, is a school of mainly Warring States period classical Chinese philosophy, whose ideas contributed greatly to the formation of the bureaucratic Chinese empire, and Daoism as prominent in the early Han. The later Han takes Guan Zhong as a forefather of the Fajia. Its more Legalistic figures include ministers Li Kui and Shang Yang, and more Daoistic figures Shen Buhai and philosopher Shen Dao, with the late Han Fei drawing on both. It is often characterized in the west along realist lines. With Shang Yang, Shen Buhai and Han Fei taken as a source for Qin dynasty practices by the Han, the Qin to Tang were more characterized by its tradition.
Though the origins of the Chinese administrative system cannot be traced to any one person, grand chancellor Shen Buhai may have had more influence than any other for the construction of the merit system, and could be considered its founder. His philosophical successor Han Fei, regarded as their finest writer, wrote the most acclaimed of their texts, the Han Feizi, containing some of the earliest commentaries on the Daodejing. Sun Tzu's Art of War recommends Han Fei's concepts of power, technique, inaction, impartiality, punishment and reward.
Concerned largely with administrative and sociopolitical innovation, Shang Yang's reforms transformed the peripheral Qin state into a militarily powerful and strongly centralized kingdom, mobilizing the Qin to ultimate conquest of the other states of China in 221 BCE. With an administrative influence for the Qin dynasty, he had a formative influence for Chinese law. Succeeding emperors and reformers often followed the templates set by Han Fei, Shen Buhai and Shang Yang.
Although relevant for Shang Yang and the Qin, Li Kui's native Wei was marginal and of little interest to other Warring States contemporaries. Shen Buhai can speculatively be compared with him, or the even older Confucian Zichan, but only at the broad level that they mutually sought more meritocratic government, and with evidence of direct influence lacking. Early a remote backwater to the west, although propelling the Qin to power, nor did central China likely know the Qin state's Shang Yang until at least the eve of imperial unification. Knowing of Shen Buhai, Shen Dao, and the Qin, even the late Xun Kuang would not seem to know Shang Yang, despite traditional comparisons.
As chancellors of neighboring states, the doctrines of Shang Yang and Shen Buhai would have encountered one another by the Qin dynasty, and the late Han Feizi, at least associated with purported Han Fei of the Hann state, is Shang Yang's first reference outside the Qin state's own Book of Lord Shang. The Han Feizi would suggest that the laws and methods of Shang Yang and Guan Zhong, with their associated works, may have circulated at that time. Chapter 24 of the Book of Lord Shang demonstrates familiarity with concepts associated with Shen Buhai and Shen Dao, but the concepts had become common by that time.
While the Warring States period otherwise contains figures that can partly be called Legalistic, as Shang Yang's first reference, it is only possible to trace the origins of their later association within the Fajia to the first direct connection between him and Shen Buhai, in chapter 43 of the Han Feizi. Set against a backdrop of the late Warring States period's Hann state under the threat of Qin, Han Fei considered fa (standards) as including law necessary, taking Shang Yang as representative, as well as the use of standards (fa) in the administration, representative of his own state's Shen Buhai. The latter he terms (shu) administrative Method or Technique, concerned with holding power, selecting ministers, and overseeing performance.
Potentially influential for the founding of the Imperial Examination, According to Han Fei, Shen Buhai had disorganized law in the time of the newly formed Hann state. No Han or earlier text individually connects Shen Buhai with penal law, but only with control of bureaucracy, and appears to have opposed penal punishment. Shen Buhai's administrative ideas would be relevant for penal practice by the Han dynasty, but can still be seen in a fifth century work quoting Liu Xiang as a figure who advocated administrative technique, supervision, and accountability to abolish the punishment of ministers, and likely did contribute to a reduction in punishment. Although some prominent reformers did use them together, the three still had their own individual influences.
From the time of the Han Feizi's synthesis onward, Shang Yang, Shen Buhai and Han Fei were often identified under Han Fei's administrative practice of Xing-Ming ("form and name"), inherited from Shen Buhai. It would serve a secondary moniker, though Xing is similar to fa (concept). As a category likely invented by Sima Tan (165–110 BCE) in a discourse on government, their several prominent are under the School of fa (fajia) because Liu Xiang (77–6BCE) and Liu Xin (c.46bce–23ce) used it as a category in the Han dynasty imperial library. Fajia ("Legalism") would become a major category of Masters Texts in Han dynasty catalogues, namely the Han state's own Book of Han (111ce). It included six other lost texts.
Although Han Fei advocates fa laws and methods, and Xun Kuang criticizes Shen Dao as "obsessed with fa", no one can be seen to have used it as an ideological term for himself his or opponent. The earlier rare term Fajia likely only meant "law abiding families" in the time of Mencius. As a current less focused on law and punishment, it potentially evolved to mean something like "methods expert in economic affairs" in the context of the late Guanzi before Tan's variant before popular. Tan's term refers to "the view that kinship and social status should be disregarded by administrative protocols", treating everyone equally and "thereby elevating the sovereign over the rest of humanity."
Although a broadly used, earlier economical meaning for the term itself would be more theoretical, Sima Qian highlights the Book of Lord Shang's Chapter 3 on Agriculture and War, while Liu Xiang would go on to suggest that Shang Yang and Li Kui had been influenced by the agriculturally focused Shennong. A primary concern of the early Book of Lord Shang, Pine's Stanford Encyclopedia still considers an aim of "rich states and powerful armies" a more accurate description for the current than just fa laws and methods.
While concepts like fa were earlier developed by the Mohists, figures like Shen Buhai, Shen Dao, and Han Fei were, retrospectively, otherwise associated with early Daoism, with the eclectic Han Feizi a Daoist-influenced text. Although resembling the Daodejing to the naked eye, early figures like Shen Buhai might have preceded it. Nonetheless, placing the biographies of Shen Buhai and Han Fei alongside Laozi and Zhuangzi, along with founding Han figures, Sima Qian claimed Han Fei, Shen Buhai and Shen Dao as having studied his same Huang-Lao philosophy, or "Yellow Emperor and Laozi Daoism". A "Yellow Emperor Daoism" is theoretically borne out by the Mawangdui silk texts, and Daoistic chapters of the Han Feizi, in particular Chapter 5.
Some of the Han Feizi's more Daoistic chapters might be late additions, and the term "Huang-Lao" might be retrospective. But their Daoistic content, earlier termed by A.C. Graham as "Laozi-Legalist", has still been taken by some to characterize the current that would appear to have become dominant by the Qin to early pre-Confucian Han dynasty. If Huang-Lao did describe a self-conscious current, it would have been more of a tendency than a unified doctrine, with early "Huang-Lao" Han dynasty administrators named by Sima Qian, like Cao Shen, taking a more "hands off" approach after the fall of the Qin dynasty.
Likely originating in the debates of the Neo-Mohists and school of names, although Liu Xiang (77–6BCE) places him under the Fajia category, he and the earlier Sima Qian (145–86 BC) considered Shen Buhai's doctrine to be that of Xing-Ming, or "form" and "name", with Sima Qian claiming him as based in Huang-Lao Daoism. Described as holding outcomes accountable to claims, Sima Qian glosses Shen Buhai, Shang Yang and Han Fei under it, otherwise asserting the First Emperor as proclaiming it's practice. The idea does at least find it's way to the Lushi Chunqiu.
Incorporating Shen Buhai and Laozi in parallel style, Han Fei's chapter 5 has visible usages of Xing-Ming, as more representative of Shen Buhai. The chapter concerns practical governance of the administration, with the Han Fei's Daoistic considerations taken as primarily "promoting the ruler’s quiescence." Sima Qian may have taken Han Fei as Huang-Lao based on it's conception of the Dao, if the idea wasn't already established.
Sima Tan partly described the Daoist school based on the Xing-Ming court. Shen Buhai, Han Fei, and Sima Qian's preferably 'inactive' ruler contracts an assembly of ministers, with Xing-Ming correlating job proposals as Ming "names" (verbal claims or "titles" as office functions) and realities or "performances" (Shi realities, or Xing forms or "shapes"). With early examples in Shen Buhai (Shenzi), several of the Mawangdui's texts bare resemblance to Han Fei's Chapter 5 discussion of Xing-Ming and it's "brilliant ruler", as do other Huang-Lao typified works, like the Guanzi, Huainanzi, and Sima Qian's Shiji.
A representative figure of Han Fei's Chapter 40 on Shi 'situational authority', and likely a well known philosopher in his time from the Jixia Academy, the Mohists and Shen Dao are claimed by the Outer Zhuangzi as predecessor to Zhuang Zhou and Laozi. Although not entirely accurate chronologically, Shen Dao does bare resemblance to the earlier, Inner Zhuangzi. The Outer Zhuangzi would incorporate Xing-Ming, emphasizing benevolence over rewards and punishments, but does not credit Shen Buhai or Han Fei if directly influenced by them. As a theoretical predecessor in the formation of Daoism, while espousing Laozi, Singologist Hansen of the Stanford Encyclopedia took Han Fei's conception of the Dao to be based on that of Shen Dao's situational authority. Whatever the situation brings is the Dao, guiding human affairs, conventions, prescriptions and knowledge. It might guide both good and evil kings, though Han Fei does not endorse the evil king, whose governance may be more complicated.
With their doctrines scarcely visible in the early Han outside the Mawangdui silk texts, according to the Shiji, the practice of Xing-Ming emerged again under the Daoistic Emperor Wen of Han and his trusted ministers, but "cautious, unobtrusive and firm", more akin to Shen Buhai than Han Fei. Attributed back to Shen Buhai, it becomes the term for secretaries who had charge of records in penal decisions by the Han dynasty, holding outcomes accountable to claims. Sima Qian blames Li Si as purportedly combining Shang Yang and Shen Buhai's doctrines under the Second Emperor, citing the Han Feizi. It's doctrine can be seen in Han Fei's chapter 43.
Taken as a commonality, what the Stanford Encyclopedia of Philosophy terms an evolutionary view of history has generally been associated more particularly with Gongsun Yang and Han Fei. However, sinologist Hansen also once took the Dao of Shen Dao and Han Fei as attempting to aim at what they took to be the '"actual" course of history'. Feng Youlan took the statesmen as fully understanding that needs change with the times and material circumstances. Admitting that people may have been more virtuous anciently, Han Fei believes that new problems require new solutions. Although a changing with the times paradigm itself was common enough, history as an evolutionary process contrasted with the beliefs of Ancient China.
Considering Shang Yang to have inherited from Li Kui and Wu Qi, professor Ch'ien Mu still believed that Shang Yang had his origins in Confucianism, saying "People say merely that Legalist origins are in Dao and De (power/virtue) [i.e., [[Daoist]] principles], apparently not aware that their origins in fact are in Confucianism. Their observance of law and sense of public justice are wholly in the spirit of Confucius' rectification of names and return to propriety, but transformed in accordance with the conditions of the age." In the ancient society, punishment by law would typically only apply to the people, while the nobles are only punished by ritual. But needs change with the times.
In what A.C. Graham took to be a "highly literary fiction", the Book of Lord Shang opens with a debate held by Duke Xiao of Qin, seeking to "consider the changes in the affairs of the age, inquire into the basis for correcting standards, and seek the Way to employ the people." Gongsun attempts to persuade the Duke to change with the times, with the Shangjunshu citing him as saying: "Orderly generations did not [follow] a single way; to benefit the state, one need not imitate antiquity."
Graham compares Han Fei in particular with the Malthusians, as "unique in seeking a historical cause of changing conditions", namely population growth, acknowledging that an underpopulated society only need moral ties. The Guanzi text sees punishment as unnecessary in ancient times with an abundance of resources, making it a question of poverty rather than human nature. Human nature is a Confucian issue. Graham otherwise considers the customs current of the time as having no significance to the statesmen, even if they may be willing to conform the government to them.
Hu Shih took Xun Kuang, Han Fei and Li Si as "champions of the idea of progress through conscious human effort", with Li Si abolishing the feudal system, unifying the empire, law, language, thought and belief, presenting a memorial to the throne in which he condemns all those who "refused to study the present and believed only in the ancients on whose authority they dared to criticize". With a quotation from Xun Kuang:
In contrast to Xun Kuang as the classically purported teacher of Han Fei and Li Si, Han Fei does not believe that a tendency to disorder demonstrates that people are evil or unruly.
As a counterpoint, Han Fei and Shen Dao do still employ argumentative reference to 'sage kings'; Han Fei claims the distinction between the ruler's interests and private interests as said to date back to Cangjie, while government by Fa (standards) is said to date back to time immemorial. Han Fei considers the demarcation between public and private a "key element" in the "enlightened governance" of the purported former kings.
With the Shangjunshu making a predominant usage of fa (standards) as law, and with Han Fei and the Han dynasty largely connecting him with fa with penal law, Sinologist Herrlee G. Creel took Shang Yang as ancient China's Legalist school. But Shang Yang's program was broader than fa or law. Han Fei elementalizes him under fa. Per Michael Loewe, ministerial recruitment occurred amidst Warring States period mobilization, with the Book of Lord Shang a primary example. Early ministerial recruitment more broadly was focused more simply on census and taxes for mobilization, developing towards such offices as that of diplomats. Penal law aside, Benjamin I. Schwartz took Shang Yang's primary program to be agriculture and war. Acknowledging their bureaucratic contributions, Pine's work in the Stanford Encyclopedia of Philosophy prefaces a Shang Yang-Han Fei primary current along realist lines as seeking rich states with powerful armies.
The actual perspective of his current was probably that of trying to create a rich, total state, with a powerful army, all geared for conquest, as expressed in the Book of Lord Shang. Translator Yuri Pines frames him more along these lines. Penal law was one component, including a dominating focus on agriculture that was later abandoned together with his harsh punishments. Shang Yang's institutional reforms can be considered unprecedented, and his economic and political reforms were "unqestionably" more important than his own personal military achievements. But the Han still recognized him as a military strategist, and he was as much a military reformer in his own time, even if he wasn't as renowned a general. He is also categorized under the Han Imperial Library's Military Books, subjection Strategists.
With Shang Yang said to have reformed Qin law, the Book of Lord Shang does not believe that fa laws will be successful without "investigating the people's disposition." Not to be confused with Shen Buhai and Han Fei's similarly romanized Xing-Ming, Pines does still identify the Shangjunshu with a names practice, taking it's primary doctrine or ideological background to be that of connecting people's inborn nature or dispositions (xing 性) with names (ming 名). The work recommends enacting laws that allow people to "pursue the desire for a name", namely fame and high social status, or just wealth if acceptable. Ensuring that these "names" are connected with actual benefits, it was hoped that if people are able to pursue these, they will be less likely to commit crimes, and more likely to engage in hard work or fight in wars.
A figure in the Stratagems of the Warring States, although not the primary focus of his administrative treatise, Shen Buhai also was a military reformer, at least for defense, and is said to have maintained the security of his state. Shen Dao was early remembered for his secondary subject of shi or "situational authority", of which he is spoken in Chapter 40 of the Han Feizi and incorporated into The Art of War, but only uses the term twice in his fragments. Taking his opponents as beclouded in various ways, Xun Kuang calls him "beclouded with fa", prominent in his work as shared with the others, otherwise teaching passivity and the elimination of desire.
Taking his opponents as "beclouded" by particular aspects of the Way, Xun Kuang criticizes Shen Dao in particular as obsessed with the emulation of models (fa) rather than the employment of worthy men, but not necessarily deciding on one as correct. Shen Dao was more concerned that there be laws than with their particulars. Xun Kuang is of the opinion that his laws (or models) lack 'proper foundations', and will not be successful in ordering the state. But he doesn't oppose him just for advocating fa models or laws. Xun Kuang also discusses fa. Rather than law itself, he opposes litigation and paradoxes, as found in the school of names.
Prior Sima Tan and Sima Qian, doctrines were identified only by teachers in connection with textual traditions; for those later termed Daoists, namely the early Laozi and Zhuangzi. Not forming large scale, organized, continuous schools of masters and disciples in the sense of the Mohists and Confucians, those later termed Daoists formed loose networks of master and disciple in the Warring States period, as text-based traditions brought together more fully in the Han dynasty. Some later termed Legalists may have been earlier than the Daodejing. But it would almost go without saying that a figure like Han Fei would be influenced by the emergence of "Daoism". Many Confucians would come to be influenced by it as well.
Early "Daoists" were likely not aware of their whole field. For the Han Feizi too, Zhuangzi influences only exists as traces. The early Han Mawangdui silk texts, snycretizing "Huang-Lao" and "Legalism", still lacked Zhuangzi influences. The main evidence of Zhuangzi influence in the Han dynasty is the Huainanzi. Professor Tao Jiang more simply refers to Han Fei's Laozi influences as Laoist, only theorizing "Zhuangist"-type influences. He theorizes these as wariness by the Monarch of manipulation, retreating into wu wei isolation rather than Confucian-style moral education and cultivation. Hermits in the Zhuangzi retreat into isolation to avoid the chaos of the age.
The Outer Zhuangzi claims the Mohists and Shen Dao as predecessor to Zhuang Zhou and Laozi, but Sinologist Hansen of the Stanford Encyclopedia only takes this as a theoretical model. Benjamin I. Schwartz describes Shen Dao in terms of equanimity and a spirit of wu wei held in common with Zhuang Zhou and his fellow academicians, the Zhuangzi likely taking them as more detached than some of their still-Daoistic, but more purposeful and "imperfect" predecessors. With Early Daoist ideas found among eclectics like Han Fei and Xun Kuang, his figure is subsumed under both the Han historians fa and dao schools (Daoism). Early taking him as the Beginning of Daoist Theory, or Mature Daoism, Hansen still discusses him alongside the Daoists as "Pre-Laozi Daoist Theory" in the Stanford Encyclopedia's Daoism.
While potentially late additions, the Han Feizi's authors wrote commentaries on the Daodejing. These earlier commentators provide no comment distinguishing themselves or Han Fei's current from that of Laozi, and did not necessarily see two distinct schools. It still modernly "seems plausible to read Hanfei within the Daoist dimension", as a "thinker influenced by Daoism." Xun Kuang individually distinguishes Shen Dao for fa, and their figures have been argued to be focused on fa administrative methods and standards. But it wasn't his exclusive theme, and the Han Feizi's authors were also focused on Daoistic concepts wu wei and Dao. The currents termed "Daoist" and "Legalist" would have had more in common with their contemporaries than their later division would suggest, which did not exist.
If Sima Tan had them in mind when he coined Fajia, Sima Qian still discusses Shen Buhai and Han Fei alongside Laozi and Zhuangzi, claiming them for a Huang-Lao heritage. They promoted the Dao-school as adopting the essentials of Fa (standards) and Ming (names) and realities. Mou Zongsan did not consider Legalism an ideology in Shang Yang's era, with law implemented for utilitarian reasons; Yuri Pines opinion is similar. Taking the secrecy of Shen Buhai and Han Fei's Shu technique as it's later representation, Mou or Huang Kejian modernly take the Dao of a supposed Warring States Daoism as it's basis, or "Daoist statecraft." But a Daoist basis is not an established fact modernly. Creel attempted to distance Shen Buhai from assumed Daoist basis in western scholarship, translating Dao as method in governmental administration.
Basing himself in administrative impartiality, and showing "both Daoist and Confucian characteristics", Shen Buhai can still modernly be taken as a more Confucian, cooperative figure than might be supposed from the scheming of Han Fei's later chapters, and does not appear to directly attack Confucianism. Although Han Fei would generally be considered authoritarian, neither were figures like Shen Dao necessarily more authoritarian for their time. Advocating that administrative machinery (fa) be used to impartially determine rewards and punishments, Shen Dao otherwise advocates that the realm be literally modeled off the natural world.
Discarding the use of his ears, eyes and wisdom, in contrast to Daoism as later understood, with Dao referring to such things as the totality of reality, Shen Buhai's Dao or Way refers only to impartial administrative methods (fa). As a figure who paraphrases the Analects, he makes a more Confucianist usage of Wu wei 'reduced activity' in the sense of leaving duties to ministers, teaching the ruler not to engage in actions that might harm the 'natural order of things', hiding his power and wit. Argued by Creel as earlier than the Daodejing, he would have to be reconsidered with the discovery of the Mawangdui Silk Texts. Later Han classification as Fajia aside, he was nonetheless said to be a Daoist, or at least "to have studied Huang-Lao". Han Fei's Chapter 5 otherwise quotes from his work alongside that of Laozi.
Mencius advocates that Emperor Shun would run away with his father if he had committed murder, rather than see him arrested. Not considering Confucian values like filial piety sufficient for governing the state, Shen Dao advocates the ruler encourage faith in rules by acting according to rules, and not abandon the throne to help murderous family members escape. While the Zhuangzi is generally critical of filial piety, Shen Dao still upheld it even if the parents are bad, instead suggesting that parents can be reproached if it might save them from disaster. Although some authors of the Han Feizi took a negative view of Confucianism, it can still be compared with Corncianism, at least nominally. Its system of reward and punishment was focused on forbidding and encouraging ministers, extending to the population, and was not just a punishment-focused penal system.
Shen Buhai, Shen Dao and Han Fei bears resemblance to the recovered eclectic, early Boshu text in the Mawangdui Silk Texts, with daoistic ideas comparable more to Natural law. But Creel found no direct political following for Shen Dao comparable to Shang Yang or Shen Buhai by the Han dynasty; the Huainanzi has major influences from the Zhuangzi, and to a lesser extent Han Fei, but opposes Shang Yang and Shen Buhai under a gloss of harsh penal law.
While the term Legalism has still seen some conventional usage in recent years, such as in Adventures in Chinese Realism, apart from its anachronism academia has avoided it for reasons which date back to Sinologist Herrlee G. Creel's 1961 Legalists or Administrators? As Han Fei presents, while Shang Yang most commonly had fa (standards) as law, Shen Buhai uses fa (standards) in the administration, which Creel translated as method. Both Han Fei and the Mohists had conceptions of law, but make broader usages of fa standards.
More broadly, together with Shen Buhai and Shen Dao, Han Fei is primarily an administrator, not a legislator. Han Fei and Shen Dao make some use of fa (standards) as akin to law, and some use of reward and punishment, but generally use fa standards similarly to Shen Buhai: as an administrative technique. Shen Buhai uses fa (standards) to compare official's duties and performances, and Han Fei often emphasizes fa in this sense, with a particular quotation from the Han Feizi as example:
Shang Yang was said to be executed after the death of Duke Xiao of Qin. Although not abandoning his reforms, they would abandon his harsh punishments. The Shangjunshu's current otherwise attempts to innovate broader means of "empowering the state", including standards (fa) of promotion. The Book of Lord Shang represents some of its currents reforms, otherwise containing pre-imperial ideas about what an order based on law and bureaucracy might look like once established.
Purportedly inheriting its current at the end Warring States period, Han Fei aspires to a state with law, wealth and a powerful military. The fact that Han Fei is not a legislator suggests that the Shang Yangian "Legalist" component of his work, aiming at a rule by law, was still more theoretical in his time and place, the purported late Han state. Han Fei's chapter 5, on Xing-Ming administration, does include specific practical recommendations, such that the Waseda University edition divides it in half. It is amongst his philosophically sophisticated arguments.
Blaming Shang Yang for too much reliance on law, Han Fei critiques him in much the same way that the Confucians critique law, holding that laws cannot practice themselves. Han Fei says: "Although the laws were rigorously implemented by the officials, the ruler at the apex lacked methods." Han Fei's choice to include law is not accidental, and is at least indirectly intended to benefit the people, insomuch as the state is benefited by way of order. It can (or has, by a law expert rather than Sinologist) be compared to a legislative rule of law inasmuch as it develops beyond purposes serving those of simply the ruler, generally operating separately from him once established. Han Fei says: "The enlightened ruler governs his officials; he does not govern the people." The ruler cannot jointly govern the people in a large state. Nor can his direct subordinates themselves do it. The ruler wields methods to control officials.
The Book of Lord Shang itself addresses statutes mainly from an administrative standpoint, and addresses many administrative questions, including an agricultural mobilization, collective responsibility, and statist meritocracy. Turning towards management, Chapter 25 of the Shangjunshu's so-called "Attention to law" advocates "strict reliance on law" (fa) mainly as "norms of promotion and demotion" to judge officials and thwart ministerial cliques, but not yet apparently having absorbed more complex methods of selection and appointment, still fell back on agriculture and war as the standard for promotion.
Sima Qian's Huang-Lao category has still generally taken as imposed backwards in recent times. Sima Qian's claims that a Yellow Emperor Daoism existed however are not without merit as compared with the Mawangdui Silk Texts, and chapter 5 of the Han Feizi. If not earlier, the Mawangdui was likely have been written in the early Han, when they would have been more appealing, and the Yellow Emperor is a major figure in one of its texts. Amongst other strains of thought, its more metaphysical, but still politically oriented Boshu text includes contents baring resemblance to Shen Buhai, Shen Dao and Han Fei, favoring arguments more comparable to natural law.
More political than a typical reading of the Laozi, and less metaphysical than later Daoist texts, Han Fei may be reading from an older, more political version of the Daodejing aimed at his social class. Early taking its existence as demonstrated by the Mawangdui silk texts, Sinologist Hansen adopts the term Huang-Lao as an early, politically partisan variety of Daoism, promoting the idea that a Huang-Lao cult actually had come to dominate Qin intellectual life. As he argues, with the Mawangdui found from a member of the political class, they should not be simply assumed as 'originals', and are not necessarily Daoist in the way it would later be understood.
An interpretation of the Daodejing (Laozi) as simply cynically political would be flawed. Still, together with qigong, it can be viewed as a manual for politics and military strategy. The Laozi of the early Mawangdui Silk Texts, and two of the three earlier Guodian Chu Slips, place political commentaries, or "ruling the state", first. Arguably lacking in metaphysics, their corpus instead possess mythologies. Nonetheless, in contrast to all prior Ways, the Daodejing emphasizes quietude and lack as wu wei. Together especially with their early Laozi, Shen Buhai, Han Fei, and so-called Huang-Lao Daoism emphasize the political usages and advantages of wu wei reduced activity as a method of control for survival, social stability, long life, and rule, refraining from action in-order to take advantage of favorable developments in affairs.
The Han Feizi's late Daodejing commentaries are comparable with the Daoism of the Guanzi Neiye, but otherwise utilizes the Laozi more as a theme for methods of rule. Although he has Daoistic conceptions of objective viewpoints, if his version of the daodejing had them, he lacks a conclusive belief in universal moralities or natural laws, sharing with Shang Yang and Shen Dao a view of man as self-interested. Advocating against manipulation of the mechanisms of government, despite an advocacy of passive mindfulness, noninterference, and quiescence, the ability to prescribe and command is still built into Han Fei's contractual method. His current is opposed with later Daoism as a practical state philosophy, not accepting a 'permanent way of statecraft', and applying the practice of wu wei or non-action more to the ruler than anyone else.
With some of Han Fei's own ideas, the Han Feizi's eclectic Way of the Ruler (Chapter 5) parallels Laozi with Shen Buhai, highlighting Shen Buhai's administrative ideas with advice to the ruler to reduce his expressions, desires and traditional wisdom. With hints of naturalism, but leaving out metaphysics, Han Fei often references the Dao in an attempt to demonstrate how the Laozi can make a better ruler, with its particular chapter as example. Sima Qian does not include the chapter in his short list, so that it can be questioned if he read it; but it would seem the most likely chapter he would have read when he placed the figures, sans Shang Yang, as "Huang-Lao", discussing Shen Buhai and Han Fei alongside Laozi and Zhuangzi. Chapter 5's first paragraph says:
K.C. Hsiao's early literature contrasts Han Fei and Daoism. One, the ruler of the Daodejing's paragraph 17 was that of a primeval state, not one expected to potentially lead an empire. A Daoist does not generally place heavy emphasis on agriculture, rewards and punishments as with Shang Yang. Han Fei says "when terms are rectified and laws complete, the sage ruler will have no matters to concern him", aiming for an "enlightened ruler presiding above in non-action". But his non-action is secrecy in imposing punishments, and concealing knowledge. Hsiao contrasts this with the ruler's mind forming "a harmonious whole with that of all his people" in the Daodejing.
But Creel takes particular note of section 17 of the Daodejing (Laozi) as interpreted by J. J. L. Duyvendak, "arousing wide interest" but "quite old in Chinese literature" as that of a form of Daoism "leaning heavily toward Legalism". Creel takes the Wenzi as example, including a passage drawing from the Daodejing, Han Feizi and Huainanzi. Section 17's 'enigmatic' passage does not directly mention rulers, but would seem to discuss the ruler as one who "does everything without acting". Duvyendak notes the discussion of good faith as recurring in section in 23, but took it as "not belonging" and did not include it there. In the Guodian and Mawangdui versions, section 17 is combined with its similarly political section 18. The typical reader would in any case find Duyvendak more readable than the Mawangdui. Translator Harris take's Shen Dao's "Understanding Loyalty" as "including a concern that a focus on loyalty arises only when things have already begun to go wrong."
Words and names are essential to administration, and discussion on the connection between realities and their names were common to all schools in the classical period (500bce-150bce), as including the Mohists and posthumous categories of Daoists, Legalists and School of Names. Its earlier thinking was actually most developed by the Confucians, while later thinking was characterized by paradoxes. Shen Dao and Daoism question the premises of prior schools, in particular that of the Confucians and Mohists, representing an even higher degree of relativist skepticism. Nonetheless, together with the earlier Shen Buhai and Xun Kuang, Han Fei can still be compared with the early Confucian rectification of names, inasmuch as his scope is bureaucratically narrower in focus than that of general philosophy.
Although more or less representing an actual social category of debaters, Sima Qian divided the schools (or categories) along elemental lines, as including Ming ("names", the usage of words in philosophy and administration including contracts) for the Mingjia School of Names, and fa (standards including law and method) for those later termed Fajia ("Legalists"). Engaging in discussions of "sameness and difference", such distinctions would naturally be useful in litigation and administration. But the more advanced Names and Realities discussions date to the later Warring States period, after Shang Yang, Shen Buhai, and Mencius, i.e. in Han Fei's era.
The practices and doctrines of Shen Buhai, Han Fei and the school of names are all termed Mingshi (name and reality) and Xingming (form and name). The administrators of both groupings have both elements, and share the same concerns, evaluating bureaucratic performance, and the structural relation between ministers and supervisors. The school of names mingjia can also inaccurately be translated as Legalists, using fa comparative models for litigation. The Zhuangzi slanders those who place the practice of Xingming and rewards and punishments above the wu-wei reduced activity of the ruler as sophists and "mere technicians"; the Han dynasty term Mingjia is applied to them.
The Qin dynasty used comparative model manuals to guide penal legal procedure, and the final chapter of the Book of Lord Shang certainly "focuses on how to maintain law in a large territorial realm." But the old harsh punishments of Shang Yang aside, in either case, no one actually ruled primarily by penal law. The primarily administrative Qin dynasty instituted office divisions that cannot punish at will; penal law supplemented the ritual order. Penal law develops more in the Han dynasty that coins the terms.
Prior Shen Buhai, Xingming likely originates earlier in the school of names. The Zhan Guo Ce quotes one of their paradoxes: "Su Qin said to the King of Qin, 'Exponents of Xingming all say that a white horse is not a horse.'" Su Qin nonetheless took Gongsun Long's white horse paradox to be a Xingming administrative strategy. Other people were simply not intended to understand it. Despite opposition to their paradoxes, the Han Feizi provides a white horse strategy: the chief minister of Yan pretended to see a white horse dash out the gate. All of his subordinates denied having seen anything, save one, who ran out and returned claiming to have seen it, identifying him as a flatterer.
An early bureaucratic pioneer, Shen Buhai was not so much more advanced as he was more focused on bureaucracy, but can be taken as of the originator of the "Legalist doctrine of names" as understood by the later Han dynasty. As a basic explanation of Xingming, Han Fei terms Shen Buhai's fa Method, Technique (Shu), saying: "Method is to confer office in accordance with a candidate's capabilities; to hold achievement accountable to claim; and to examine the ability of the assembled ministers. This is controlled by the ruler."
Han Fei's late tradition develops its own unique names and realities (Xing-Ming) method. Naming individuals to their roles as ministers (e.g. "Steward of Cloaks"), in contrast to the earlier Confucians, Han Fei holds ministers accountable for their proposals, actions and performance. Their direct connection as an administrative function cannot be seen before Han Fei; the late Warring States theories of Xun Kuang and the Mohists were still far more generalized.
Translator Yuri Pines takes the Book of Lord Shang's final chapter 26 as reflecting administrative realities of the 'late preimperial and Imperial Qin', essentially congruous with knowledge of the Qin. Although seeking governance more broadly, protecting the people from abuse by ministers becomes more important than punishing the people. Taken as universally beneficial, in an attempt to deliver the "blessed eradication of punishments through punishments", clear laws are promulgated and taught that the people can use against ministers abusing the statutes, punishing them according to the penalties of the statute abused. Han Fei advocates the same, but is more focused on accomplishing it through the administrative power of the ruler.
If at least part of the Han Feizi dates date to its period, the Shangjunshu could have circulated on the eve of unification. The work's adoption by the Han Feizi can give the appearance of a living current for the old harsh punishments of Shang Yang, that can be mistakenly imposed backward. Pine's work in the Stanford Encyclopedia accepts a long status quo within scholarship: Whatever events really transpired, the Qin had otherwise abandoned the harsh punishments of Shang Shang before unification. The Book of Lord Shang itself is not a homogeneous ideology, but shifts substantially over its development. As the work's first reference, the Han Feizi recalls its earlier Chapter 4, saying:
As Pines recalls, even if the Shangjunshu only passingly suggests that a need for punishment would pass away, and a more moral driven order evolve, the Qin nonetheless did abandon them. As a component of general colonization, the most common heavy punishment was expulsion to the new colonies, with exile considered its own heavy punishment in ancient China. The Han engage in the same practice, transferring criminals to the frontiers for military service, with Emperor Wu and later emperors recruiting men sentenced to death for expeditionary armies. The Qin have mutilating punishments like nose cutting, but with tattooing as most common, with shame its own heavy punishment in ancient China. They are not harsher for their time, and form a continuity with the early Han dynasty, abolishing mutilations in 167 BC.
Punishments in the Qin and early Han were commonly pardoned or redeemed in exchange for fines, labor or one to several aristocratic ranks, even up to the death penalty. Not the most common punishments, the Qin's mutilating punishment likely exist in part to create labor in agriculture, husbandry, workshops, and wall building. Replacing mutilation, labor from one to five years becomes the common heavy punishment in early Imperial China, generally in building roads and canals.
For Han Fei, the power structure is unable to bare an autonomous ministerial practice of reward and punishment. Han Fei mainly targets ministerial infringements. His main argument for punishment by law, Chapter 7's The Two Handles, is that delegating reward and punishment to ministers has led to an erosion of power and collapse of states in his era, and should be monopolized, using severe punishment in an attempt to abolish ministerial infringements, and therefore punishment. Utilizing fa standards, Han Fei's ruler abandons personal preferences in reward and punishment out of self-preservation.
While Han Fei believes that a benevolent government that does not punish will harm the law, and create confusion, he also believes that a violent and tyrannical ruler will create an irrational government, with conflict and rebellion. Shen Dao, technically the first member of Han Fei's triad between the figures, at least by order of chapters, never suggests kinds of punishments, as that is not the point. The main point is that it would involve the ruler too much to decide them personally, exposing him to resentment. The ruler should decide punishments using fa standards.
Han Fei does does not suggest kinds of punishments either, and would not seem to care about punishment as retribution itself. He only cares whether they work, and therefore end punishments. Although "benevolence and righteousness" may simply be "glittering words", other means can potentially be included. While recalling Shang Yang, Han Fei places a more equal emphasis on reward to encourage people and produce good results; punishment for him was still secondary to simply controlling ministers through techniques. Although in bad times these could be expected to include espionage, they consisted primarily simply in written agreements.
Emphasizing a dichotomy between the people and state, the Book of Lord Shang in particular has been regarded as anti-people, with alienating statements that a weak people makes a strong military. But, such statements are concentrated in a few chapters, and the work does still vacillate against ministerial abuses. Michael Loewe still regarded the laws as primarily concerned with peace and order. They were harsh in Shang Yang's time mainly out of hope that people will no longer dare to break them.
Sima Qian argues the Qin dynasty, relying on rigorous laws, as nonetheless still insufficiently rigorous for a completely consistent practice, suggesting them as not having always delivered justice as others understood it. Still, from a modern perspective, it is "impossible" to deny at least the "'basic' justice of Qin laws". Rejecting the whims of individual ministers in favor of clear protocols, and insisting on forensic examinations, for an ancient society they are ultimately more definable by fairness than cruelty.
With contradicting evidences, as a last resort, officials could rely on beatings, but had to be reported and compared with evidence, and cannot actually punish without confession. With administration and judiciary not separated in ancient societies, the Qin develop the idea of the judge magistrate as a detective, emerging in the culture of early Han dynasty theater with judges as detectives aspiring to truth as justice.
Inasmuch as Han Fei has modernly been related with the idea of justice, he opposes the early Confucian idea that ministers should be immune to penal law. With an at least incidental concern for the people, the Han Feizi is "adamant that blatant manipulation and subversion of law to the detriment of the state and ruler should never be tolerated":
The Han dynasty mainly villainizes the First Emperor of China as arrogant and inflexible, blaming the second emperor for the fall of Qin. In the early Han, Jia Yi (200–169 BCE) associates the first Emperor with cruel punishments. Amongst figures that would otherwise be to taken to be his own Huang-Lao typified allies, Sima Qian glosses Jia Yi a scholar of both Shang Yang and Shen Buhai. While he likely had read both, he was a more likely proponent of Shen Buhai, supporting regulation of the bureaucracy and feudal lords.
Being both a Daoistic and Confucian doctrine, he favored the practice of Wu wei, or non-action by the ruler, against the practice of law. Despite advocating wuwei inaction by the ruler, and writing the Ten Crimes of Qin in opposition to harsh punishments, figures like Jia Yi were opposed for attempting to regulate the bureaucracy, leading to his banishment under ministerial pressure. The Emperor sent him to teach his sons. Mark Edward Lewis modernly characterized it as a politically motivated mythos.
Sinologists Herrlee G. Creel and Yuri Pines cite the Huainanzi, associated with Liu An (179–122 bce), as the earliest combinational gloss of Shen Buhai with Shang Yang, comparing them as one person with harsh punishments to their own doctrine. Positively receiving reunification of the empire, the text opposes centralized government and the class of scholar-officials. With ideas of wuwei nonaction, the Huainanzi recommends that the ruler put aside trivial matters, and follow the ways of Fuxi and Nüwa, abiding in Empty Nothingness and Pure Unity. Placing ritual specialists lower than heavenly prognosticators, and aiming to demonstrate how every text that came before it is now part of its own integral unity, the Huainanzi posed a threat to the Han court. Chapter 1 is based most strongly on Laozi, but otherwise most strongly resonates with the Zhuangzi, with influences from the Hanfeizi, Lüshi chunqiu, Mozi, and Guanzi, the Classic of Poetry, etc.
Inasmuch as the term Legalism has been used modernly, Dingxin Zhao characterizes the Western Han as developing a Confucian-Legalist state.
Liu An, as traditional author of the Huang-Lao typified Huainanzi, would be suppressed together with the Huang-Lao faction by other potential Han Feizi students, the Shang Yangian Emperor Wu of Han (reign 141-87bce), Gongsun Hong and Zhang Tang. Under Confucian factional pressure, Emperor Wu dismisses the Yellow Emperor Daoists, xingming theoreticians, and those of other philosophies, and discriminates against scholars of Shang Yang, Shen Buhai and Han Fei. When older, those officials who praised Shang Yang and Li Si and denounced Confucius were upheld. Together with that of the Confucians, the imperial examination system would be instituted through the likely influence of Shen Buhai and Han Fei, who advocated appointment by methodologies of performance checking.
Undoubtedly associating Shang Yang primarily with penal law, no received Han text ever attempted to individually argue or obfuscate Shen Buhai a penal figure. Contrasting with Confucius and the Zhou dynasty, Dong Zhongshu (179–104 BC) simply associates Shen Buhai and Shang Yang with the Qin again as reportedly implementing the ideas of Han Fei. Asserting that the Qin, with high taxes and oppressive officials, had declined amidst a failure to punish criminals, he proceeds to associate laws, punishments and meritocratic appointment with the Zhou.
With Sima Qian's categories already popular by their time, Imperial Archivists Liu Xiang (77–6BCE) and Liu Xin (c.46bce–23ce) placed Han Fei's figures. They associate the schools with ancient departments, with the fa-school "probably originating in the department of prisons", whose descendants, then, failed to punish criminals. Fajia becomes a category of texts in the Han state's own Book of Han (111ce), with Dong Zhongshu's argument included in its Chapter 56 Biography.