LEGALISM . Legalism refers to theories of statecraft that emerged in China after the weakening of the Zhou confederation in 403 bce. Legalist thinkers never formed a school of thought that matched the Confucian establishment. It was later Han dynasty (206 bce–220 ce) syncretists who labeled certain early thinkers fajia for their commitment to clear, public laws (fa ) backed by predictable, harsh punishments as the foundation of government. The most famous early practioners of Legalism associated themselves with the state of Qin, which eventually conquered its rival kingdoms and established the first Chinese empire in 221 bce. But Legalist ideas filter through many other texts from the Warring States period (403–221 bce) and inform later political theories that developed to accommodate the centralized, imperial state.
The Role Law in Government
Shang Yang (fl. 359–338 bce) presented a strong case for replacing local customs with a unified state-sponsored legal system. As a young man he is said to have studied criminal law, which suggests that by the fourth century in China a conception of law that was backed by punitive measures already existed. He lived in a world in the midst of massive social upheaval, as kings grew ever more powerful, "new men" free from ascriptive ties served as court advisers, and taxpaying peasants replaced aristocrats in warfare. The proper role of law in this new world was a matter of much discussion, and Shang Yang's views are identified in a book, Shangjunshu (The Book of Lord Shang ), that most likely represents the collective wisdom of a group of like-minded realists. According to the text, Shang Yang's service at the court of Duke Xiao of Qin in 359 bce involved him in court debates with a ruler wary of tampering with the laws and courtiers committed to maintaining the status quo. Shang Yang addressed their concerns about the dangers of replacing laws based on kinship, custom, and historical precedent with more universal standards. He declared the past so varied and complex that it could not serve as a reliable guide for contemporary governments: "If the Emperors and Kings [of old] did not copy one another, what standards should we follow?" But Shang Yang himself wasn't above manipulating contested historical precedent to legitimate his claim that law has a time-honored place in government. He noted, for example, that some of the most effective rulers in the golden age did in fact use laws and punishments with good results.
Shang Yang and later Legalists concerned themselves with the character of laws, which in their view must be clearly written, universally disseminated, and backed by consistent, appropriate punishments in order to operate as effective deterrents. Legalist writers displayed an absolute commitment to guard the welfare of the state rather than serve the will of the ruler or accede to the demands of the populace. Shang Yang advocated measures designed to strengthen state control over the common people and the noble class alike. He proposed to organize commoners into taxpaying groups whose members would suffer if any member failed to pay taxes or committed a crime, failed to ensure that households supply the manpower to support the armies, or failed to outlaw private vendettas and to mete out rewards for meritorious service rather than family status. In his scheme, there was no room for human caprice. Shang Yang echoed Aristotle when he argued that good rulers are so rare that only laws could check their mistakes and protect their position: "An enlightened ruler is cautious in the face of the laws and regulations."
Early Legalist and Confucian writers disagreed about the place of law and institutions in an ideal society, but the lines between adherents of the major schools of thought often blurred. For example, it was the greatest Confucian scholar of his day, Xunzi (310–220 bce), who trained two of the most influential Legalist reformers of the late classical era, Han Fei and Li Si.
Law and Punishment
Xunzi based his legal theory on a realistic assessment of the costs and benefits of the state and its institutions. More pragmatic than earlier Confucians, he believed that humans by nature compete for resources and must be restrained by a strong state and strict laws. But he recognized as well that laws are only as effective as the men who administer them. His student, Han Fei, moved one step further and placed his faith squarely on mechanistic laws that would restrain the bureaucrats and punish the deviant. Living in a time when it had become clear that only a strong centralized state could put an end to warfare that had become constant and costly, Han Fei proposed measures that bolstered the state and its institutions rather than the welfare of local communities. He advocated clearly defined and appropriate rewards and harsh punishments to control all human behavior—including the acts of rulers and bureaucrats. Codified law, in his scheme, would mitigate the arbitrary, whimsical decisions that brought so much chaos to the world. "Law is confused if private standards are used," and "When laws are established, punishments will be consistent." Han Fei's concern that laws be clear and public and punishments consistent and predictable resonated with other Warring States writers, especially when the death penalty was involved. The eclectic text Guanzi, for example, bluntly declares, "When the people know the death penalty is inevitable, they will fear it."
Predictable laws and legitimate punishments worked best if they were based on immutable standards that could withstand human manipulation, and for some third-century thinkers, a universal natural principle, the dao, rather than the old books and ways of the past, seemed to best serve that purpose. Han Fei discussed the dao as a workable standard for law, but other texts more clearly link human standards with the law of nature. For example, the Jingfa, a text unknown to the world of scholarship until tomb excavations in 1974, clearly links law with nature. According to this newly discovered work, "The dao gives birth to law, and law marks what is crooked from what is straight." A demand for clear laws and predictable punishments emerges as a major theme as well in other familiar texts transmitted in the late Warring States and early Han dynasty. The Guanzi, for example, declares: "Therefore it is said that statutes, regulations and measures must be modeled on dao. Commands and ordinances must be clear and open, rewards and punishments trusted and definite. These are the constant standards for bringing justice to the people." By the time the empire coalesced during the Han dynasty, legal reformers regularly urged the emperors to clarify the laws and maintain consistency in punishments.
Law and Empire
Arguments for clear, consistent, universal laws make sense in light of the move toward empire that these late third-century thinkers witnessed. Universal rule would require standards that transcended local customs and particular histories. It is not surprising that one of the most comprehensive blueprints for linking all human activities with cosmic patterns was produced in the state of Qin, which unified China in 221 bce. The Lushi Chuqiu, compiled around 239 by a group of scholars retained by Lu Buwei, a merchant and high-level official in the state of Qin, set forth an intricate scheme for managing political and religious duties according to the patterns of the natural world. The text incorporates Legalist notions of the importance of consistent laws and punishments, firmly rejects the standards of the past as being too unreliable for present circumstances, and creates an almanac for scheduling punishments in a manner that would not upset the cosmic balance. Archaeological excavations in China after 1975 have yielded legal materials that allow scholars today to check the literary and historical record with a new perspective. The Qin materials unearthed at Shuihudi, for example, demonstrate that the low-level official in charge of local legal matters who took his administrative guidelines to his grave was bound by strict procedures himself and in turn enforced draconian measures on his charges.
The first emperor of China boasted in 221 that his creation would last ten thousand generations, but the task of imposing legal and religious uniformity in the new territories under its control proved so onerous that the dynasty collapsed after less than two decades. The succeeding Han dynasty legitimated the use of force to destroy Qin by promising to simplify and mitigate Qin's harsh laws. But contrary to early Han claims to reject the harsh laws of Qin, the Han code recently unearthed at Jiangjiashan shows that to the contrary, the laws of Qin remained as the foundation for the new dynasty's legal system. Indeed, law codes, case manuals, and literary materials from medieval and late imperial China reveal that Legalist conceptions of law as a means of exercising control and centralized power lived on in China, despite the attempts of orthodox Confucian scholars and bureaucrats to associate themselves with more benign forms of control through education and sound leadership.
Modern views of the early Legalists are mixed. Some thinkers blame them for creating a draconian legal system that undergirded despotism, while others see them as prescient realists who did not shirk from evaluating traditions with a utilitarian eye. After the Chinese empire suffered internal and external attacks in the mid-nineteenth century, some thinkers rejected Confucian conservatism and turned to the early Legalists for inspiration as they attempted to reform the imperial apparatus. During the Maoist period, when Confucianism represented all that was feudal and decadent, the Legalist thinkers were touted as realistic men of action. In the post-Maoist reform era in China, debates about the efficacy of law have become urgent as China enters a global economic and legal order. Some contemporary Chinese political thinkers point to Legalist thought as an early expression of the rule of law that subordinates rulers to the law, while others see them as the creators of a system of rule by law that places the rulers above the laws.
The most accessible recent account of Legalism in the context of early Chinese culture and intellectual currents is by Benjamin Schwartz, The World of Thought in Ancient China (Cambridge, Mass., 1985). Li Yuning offers an interesting survey of perspectives about Shang Yang in relation to Maoist politics in China in Shang Yang's Reforms and State Control in China (White Plains, N.Y., 1977). Randall Peerenboom discusses Legalist theories in China with a historical introduction and contemporary evaluation in China's Long March Toward Rule of Law (Cambridge, U.K., 2002). A selection of translations of original materials related to law in early China can be found in Sources of Chinese Tradition. Vol. 1: From Earliest Times to 1600. Compiled by Wm. Theodore De Bary and Irene Bloom (New York, 1999).
Karen Turner (2005)