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China’s Legalist Order: From the Qin to the PRC (1-2): Its origin, doctrine, and earlier years
By Paul Farwell
2013-10-01 08:27:09
 

Editor’s Note: This article was written a few years back by a senior student, Asian Studies major, at the University of Mount Union. Based on his detailed study of the subject, the author tries to provide "an alternative view of China that attempts to be free of western bias in examining China" by arguing that "[Legalist] policies are the reason China has lasted for centuries to the present day" and by supporting this argument with abundant citations of historical facts from all major dynasties in China’s history. His efforts are worth commending and encouraging.

            Readers can expect the author,with more study of the subject, to be more familiar with the traditional Chinese way of thinking which is immanent in almost all traditional Chinese schools of thought and is characterized by a holistic perspective in varying degrees. Typical Chinese thought has been holistic in relating political considerations to socioeconomic concerns and further to a philosophic worldview which underlies and unifies a specific system of thought on political economy, and holistic in harmoniously integrating all aspects, including parts and the whole, within a specific thought system. The author does show awareness of the inner relatedness within the traditional Chinese thought system as a whole when he states the historic truth about the dominating ideology during Han dynasty as Legalist core in Confucian shell. By sticking to the holistic perspective, he can be expected to find and point out the primary principle within the Legalist thought system which unifies the many other, secondary principles he has presented in the article and be able to free himself from some bias he has unwittingly adopted from the social environment he has been brought up and educated in and to present a more truthful and profound analysis of modern-day China.


THE TEXT

When most people think of China today, they think of unparalleled economic growth, tremendous opportunity, and a rising power on the world stage.  However, when people think of China in terms of politics, many think of oppression, tyranny, and suffering.  As such, most people have only negative opinions towards China’s government.  But the reason for this is never closely examined.  Is China really that oppressive or does it only appear to be so?  If compared with western democracy, such a regime may appear to be quite oppressive, yet the reality lies in the fact that the current Chinese government is simply following a long line of regimes that share one common thread:  Legalism.  This doctrine emphasized a need for such a government and for over two thousand years it has dominated China politically.  Although it is not democratic, it is responsible for keeping China together for this very long period of time.  While other empires have withered away, and whose footprints can only be found in history books, China is perhaps the only nation that has stayed together this long and still remains a powerful force in global affairs.  In fact, China seems to be even undergoing a rebirth to greatness.  So, while many argue that the current regime in China is morally evil, it can also be argued that such policies are the reason China has lasted for centuries to the present day.  This paper will attempt to support this concept by examining legalism in Chinese history and comparing it to today.  Through this analysis, several questions about China’s future will be dissected, providing the reader an alternative view of China that attempts to be free of western bias in examining China.

1– Legalism’s Origin and Doctrine

Before one can examine legalism, one must first understand its background, specifically the who, what, when and how.  In this section, basic legalist history will be explained, including who founded it, what it is based upon, and what principles it stands for.  Many of these ideas did undergo changes over the centuries, so the majority of this section will discuss legalism when it was founded, not as it is today.

Before beginning to understand this doctrine, one must examine “legalism” as a word.  In Chinese, this doctrine has two primary translations:  School of law and legalism.   Both words infer the idea that law holds an important place in the doctrine.  Legalism is perhaps more appropriate title for this doctrine as it illustrates two important things.  First the “-ism” shows that this is an actual ideology, much like conservatism or liberalism.  Second, the root of the word “legal” informs the reader that legal matters are the most crucial aspect of the doctrine.  Meanwhile, school of law, though officially known as such during the Warring States, infers that the law is the most crucial aspect of the doctrine.  However, as one will see, this is not entirely accurate.  Although legalism is not absolutely correct as well, it is more accurate than the school of law.  Therefore, this doctrine will henceforth be known as legalism throughout this paper.

So what are the basic theories of legalism?  There are three basic principles:  Law, the art of rule, and positional power.  Law refers to the legalist dependence on written law to ensure efficiency and to keep people in line.  This was largely punishment dependent as, “…there are nine penalties as against one reward.”[1]  The art of rule has to do with how a ruler is supposed to act and enforce his rule.  This was accomplished mainly by secrecy on the ruler’s part, as information on what a ruler wants allows undesirables to gain power.  Positional Power refers to one’s position of power.  Change can only come from the top and therefore that is the place to be.  These three principles form the foundation of legalist doctrine.  However, there are many other things that must be mentioned about legalism, such as how exactly one executes legalist policy.

The question of legalist policy is largely answered by Shang Yang, who will be discussed later in more detail.  There are many dimensions in Shang’s calculations, including the government structure, the economy, the military, and what to do with the people.  Shang Yang deals with these things primarily through pessimism, pragmatism, and logic.  As such, legalist doctrine can be described as cold and heartless, especially when compared to Daoism and Confucianism.  However, he and other legalist statesmen were convinced that this was the only way to end the chaos of the Warring States, a period of time where China was divided into several independent kingdoms.  To do this, one must first centralize the government under a supreme, all-powerful ruler.  This creates a clear power structure where everyone knows clearly who is in charge.  Second, the people must be used to the state’s benefit.  Shang Yang furthered this argument by stating, “A weak people means a strong state and a strong state means a weak people.”[2] Shang Yang’s primary goal was to make the state as strong as possible and this is the only way in which he saw to do this. In addition,  should be used to mend everyone to the state’s will.  This makes people predictable and this results in stability, which is of great importance to legalists.  Third, the feudal system had to be removed from the equation, since it does not mix well with centralization.  This was done mainly through basing rank on merit, rather than birth.  This weakened the aristocracy and allowed the legalists to make people work harder, as they knew they would benefit from it.  Lastly, the economy should be based on agriculture, not trade.  This was because conquest was seen as paramount and therefore a large food supply would be needed to support large armies.  Agriculture was considered more important than trade during this period (This changes, however, in the late twentieth century).  Polices such as these all supported one another.  For example, by attacking the feudal system, centralization was more easily attained as the ruler was made more powerful.

Historically, there are three men responsible for legalism’s founding and use.  First, there was Shang Yang, who served the Qin Dynasty, one of seven main states during the Warring States Period.  He is largely seen as the man who turned the Qin Dynasty from a weak, backwards feudal state into an efficient, organized and powerful state.[3]  He wrote The Book of Lord Shang which provided the basis for legalist thought.  This book mainly dealt with what policies should be enacted and emphasized the theories of law and positional power.  According to Dr. Duyvendak, Shang Yang was, “a brilliant, ambitious, unscrupulous, courageous politician, a man with an original idea, independent mind, a statesman of real vision.”[4]  This description can easily describe all three of these men as they all had a similar career as Shang Yang.  However, legalist doctrine at this point was incomplete.  Han Fei, a minister of another state, was the one that solved this problem.  In his book, the Han Fei Tzu, he further advanced many of Shang Yang’s ideas.  The most important aspect he added was theories on the art of rule.  The last man, and the one who perfected legalism in the Qin, was Li Si.  He was a later Qin statesman and was largely responsible for putting legalism into practice and ultimately unifying China.  These three men lived different lives, but ironically, all died violently.  Shang Yang was killed fighting, Han Fei was killed by poison, and Li Si died at the hands of his own methods, being torn apart by chariots.  Nevertheless, these three men had the most important impact of legalist doctrine and are considered its founders.

Although many may describe legalism as being original, this is not completely accurate.  There are many Daoist and Confucian influences that can be seen within legalism.  However, one must consider that one reason for this is that both Han Fei and Li Si studied under the Confucian scholar Xun Tzu.  He had many ideas that differed from mainstream Confucianism and many of these ideas can be seen in legalist doctrine.  First, is the idea of giving rank based on merit.  In his book, Xun Tzu writes, “…in the case of worthy and able men, promote them.”[5] As stated previously, this is the primary method of gaining rank in legalism.  The idea of reward and punishment is also not original.  Again Xun Tzu says, “Encourage them with rewards, discipline with punishments.[6]” Despite the legalists relying on punishment more than reward, this practice was obviously influenced by Xun’s idea.  Another seemingly legalist invention was the belief that man’s nature is evil.  However, this too was stated by Xun Tzu who stated, “Man’s nature is evil, goodness is the result of conscious activity.”[7] Legalists also believed that humans are evil, although they felt nothing could change this.  Therefore, a correlation conclusively exists between Confucianism and legalism. 

Daoism also had influence on legalism’s development.  This can be seen more clearly in Han Fei’s writing as his book on legalism starts with, “The Way is the beginning of all beings and the measure of right and wrong.”[8] Han Fei, however, applied this belief to the ruler, rather than nature as in Daoism.  Although this is an original idea, it is still based upon a Daoist concept.  What this means is that the ruler cannot be opposed, much like nature is.  However, such similarities are not limited to Han Fei’s writings as other similarities can be seen in Shang Yang’s writings.  For example, he states that, “…The climax in the understanding of punishments is to bring about a condition of having no punishments.”[9] Daoists often made the case that by doing a, c would happen.  However, Daoism had the problem of never telling the reader of what b was.  Legalism, especially in this case, attempts to answer this.  There are other examples of Daoism elsewhere.  The hands of reward and punishment are an obvious reference to the Yin and Yang of Daoism, as they are both opposites.  In addition, the foundation of legalism is based upon three things: Law, the art of rule, and positional power.  This number happens to be three which is also an important number in Daoism, as can been seen in the union between Heaven, Earth, and Humanity.  Therefore, legalism is not as original as it may first seem.  Nevertheless, it did mend many of these beliefs to support its own unique ideology.

2 – Legalism in Ancient China

In 221 B.C., China was unified for the first time under the Qin Dynasty.  This was done through raw military power as each of the other states was conquered one by one until only the Qin remained.  Although China was partially unified under the Shang and Zhou Dynasties, they were feudalistic, while the Qin was not.  In addition, the Qin created a kind of national identity never seen before in China.  The Qin, being the first and last pure legalist state, must be studied in order to fully grasp its impact on China.  This section will discuss this important dynasty and its fall in detail.

The Qin Dynasty was founded before the Warring States Period as an independent state of the Zhou.  At this time the Qin was just one of many others.  In fact, it was actually considered barbaric due to the tribal influences of groups like the Ti barbarians.[10]  At this point, almost no one suspected the Qin to be the dynasty that unified China as it appeared too backwards to do so.  Sometime later, the ideas of legalism reached the eras of the Qin ruler and so he hired the legalist scholar Shang Yang.  This man would go on to make the Qin the most powerful state of the era.  It was not because he made the military strong or because of his personal abilities, rather it was his successful attempt at making the entire Qin state a unified war machine that easily crushed anything in its way.  He did this through several policies.  First quantitative measures were introduced, such as taxation registers, crop returns, and population.[11]  This allowed Qin statesmen to see what resources they had to work with.  Second written, codified law was introduced.  This, “Replace[d] the traditional and largely unwritten…rules of customary behavior.”[12] This was to insure that the laws were clear and to ensure a kind of standardized behavior that everyone followed.  Shang Yang also tried to increase the Qin’s small population by weakening the family.  He divided households into five units each that would be responsible for each other and doubled taxes on families having two or more adult males living in one household.[13]  He also reformed agriculture by removing the old land holding system and replaced it with a more flexible system in which land sizes varied.  He also made it possible for people to buy and sell land.[14]  This further weakened the aristocracy who traditionally controlled rural lands.  This combined with Shang’s policy of giving rank based on merit, not birth, greatly weakened the aristocracy’s hold on the Qin.  He also organized the Qin into commanderies, which were under the control of the central government.  Shang Yang was also the first to introduce a system of reward and punishment that applied to everyone, including the aristocracy.  However, this proved to be Shang Yang’s undoing as he applied punishment to the tutors of the heir apparent for a crime done by the heir.[15]  When the heir came to power, he moved against Shang Yang in revenge, forcing Shang Yang to flee.  Sometime later, he was killed in battle and his body torn to pieces afterwards (Despite him being dead already).[16]  Nevertheless, Shang’s policies outlived him and it made the Qin one of the most powerful states of the time.  However, legalism did not come to a full circle until Li Si came to the Qin.

Li Si, much like Shang Yang, was a particularly ambitious man.  He furthered the policies of Shang Yang and sought even more centralization, bureaucracy, and standardization.  This allowed the Qin to unify China more quickly.  He also killed his former classmate and teacher, Han Fei, during this time because he felt he was too much of a threat to his own power and had him poisoned.  After unification, Li Si initiated many reforms.  First, he standardized weights, measurements, currency, and the written word.  This was crucial as when the Qin unified China, there had been many languages, many systems of currency, and different measurement scales.  Li Si knew he had to quickly unify these things or else this new country would not last long, as he feared another Warring States would occur.  After successfully unifying these things, Li Si tried to standardize thought as well.  He did this by convincing the Qin ruler to burn the books that had no use to the state and to also bury some Confucian scholars alive.  These two acts are perhaps the most infamous of this era and it only created resentment to Qin rule.  He also had the empire level the old feudal walls and other obstacles built for war.[17] This allowed trade and transport to move more easily and allowed the Qin to move troops around China quickly.  Another policy was the weakening of the feudal lords.  While Shang Yang weakened the aristocracy, Li Si weakened these former feudal lords, as they were a potential threat.  He had them moved to the capital where they could be easily watched and replaced by governors chosen by the central government.    However, sometime later after the death of the Qin Shihuang, intrigues began in the court and Li Si fell prey to others.  The Qin Dynasty followed Li Si in death a short-time later in 206 B.C.  This fall can be attributed to legalism in some part.

Confucian historians are quick to point to legalism as the primary reason for the fall of the Qin, but this is not completely true.  Some blame can be attributed to legalism, but not all of it.  This mostly is because of theory versus reality.  Specifically, legalism as a theory was much different than legalism in practice.  First, the law was not always applied equally in all situations and to all people.[18] As seen in the situation with Shang Yang and the Qin heir, punishment was not applied in full and the heir was exempt from it.  This resulted in two things, one being resentment from those punished harshly and a narrow base of support as certain people were favored over others.  Second, the ruler was supposed to be mysterious and shrouded in secrecy.  However, Qin Shihuang was not and often went on tours of his country.  Another flaw was that Qin Shihuang favored some people and made his will known to them.  This allowed certain people, like Zhao Gao, to take advantage of him and later bring the Qin to ruin.  Because of this, as well as his strong will, the Second Emperor was unable to adequately take his place, making him a puppet to others.  However, the most important difference between the doctrine of legalism and reality is that fact that the Qin never really changed.  Both Han Fei and Shang Yang constantly reiterate the idea that, “…Circumstances differ with the age…[and ] As the circumstances change the ways of dealing with them alter too.”[19]  The purpose of legalism was to unify China and it had served that purpose.  While, Li Si did reform many things to make everything easier to control, the state itself never changed direction.  The Qin kept the status quo and this ended up causing many problems in the form of rebellions and intrigues within the central government.  Despite this though, some blame can be attributed to the doctrine of legalism.

While legalism had many good ideas, there were some negative ones as well.  First, laws were far too strict.  For example, if a person was late to something, they would be executed.  This led to Liu Bang’s rebellion as he and his work troop were delayed for work by a storm.  Second, the people were seen as tools and they were treated as so.  The people were overtaxed for construction projects, like the Great Wall, canals, and palaces for Qin Shihaung and the former feudal lords to reside in.  Another fact was that a conscription service was enforced and males had to serve on harsh labor projects like the Great Wall.  This made the Qin lose support of the people.  In addition, the doctrine allowed power to be in the hands of the central government and whoever was in it.  There was no contingency plan if the rulers were weak or corrupt and as a result, intrigues developed.  This failure to plan cost Li Si his life and these intrigues were largely responsible for the Qin’s fall.  Since the central government was in chaos, the military had no real leader and this provided an opportunity to those who opposed the Qin.  Therefore, the feudal lords regained power, the people rebelled, and competent leaders, like Meng Tian, the general who was largely responsible for building the Great Wall, were killed.  Legalism created the situation and so some blame for all this can be placed on it.

 

China’s Legalist Order: From the Qin to the PRC (3): Legalism’s Legacy

China’s Legalist Order: From the Qin to the PRC (4): *Legalism in the Modern Era

China’s Legalist Order: From the Qin to the PRC (5): Legalism and China’s Future




[1] Shang, Yang. The Book of Lord Shang: A Classic of the Chinese School of Law. Translated by Dr. J.J. Duyvendak. Chicago: The University of Chicago Press, 1928. p. 202.

[2] Ditto p. 303.

[3] Ditto p. 39.

[4] Ditto p. 33

[5] Mo Tzu, Hsun Tzu, and Han Fei Tzu. Basic Writings of Mo Tzu, Hsun Tzu, and Han Fei Tzu. Translated by Burton Watson. New York: Columbia University Press, 1967. Page 33

[6] Mo Tzu, Hsun Tzu, and Han Fei Tzu p.34

[7] Ditto p. 157

[8] Ditto p. 16

[9] Shang p. 275.

[10] Twitchett, Denis, and Loewe, Michael, eds.  The Cambridge History of China: The Ch’in and Han Empires. Cambridge: Cambridge University Press, 1986. Page 31.

[11] Twitchett, Denis and Loewe, Michael. p. 26.

[12] Ditto p.26.

[13] Ditto p.27.

[14] Ditto p.35

[15] Ditto p. 34

[16] Shang p. 35

[17] Ditto p. 56

[18] Ditto p.27.

[19] Mo Tzu, Hsun Tzu, and Han Fei Tzu p. 100.

 
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