Legalism (Chinese philosophy)

Fajia (Chinese: 法家; pinyin: fǎjiā), or the School of fa (laws, methods), early translated Legalism,^[1][2] was a school of thought representing a broader collection of primarily Warring States period classical Chinese philosophy, incorporating more administrative works traditionally said to be rooted in Huang-Lao Daoism. Addressing practical governance challenges of the unstable feudal system,^[3] their ideas 'contributed greatly to the formation of the Chinese empire' and bureaucracy,^[4] advocating concepts including rule by law, sophisticated administrative technique, and ideas of state and sovereign power.^[5] They are often interpreted in the West along realist lines.^[6][7] Though persisting, the Qin to Tang were more characterized by the 'centralizing tendencies' of their traditions.^[8]

Legalism
Statue of the legalist Shang Yang
Chinese	法家
Literal meaning	School of law
Transcriptions Standard Mandarin Hanyu Pinyin Fǎjiā Bopomofo ㄈㄚˇ ㄐㄧㄚ Wade–Giles Fa3-chia1 Tongyong Pinyin Fǎ-jia IPA [fà.tɕjá] Yue: Cantonese Yale Romanization Faatgā Jyutping faat3 gaa1 IPA [fat̚˧ ka˥]

The school incorporates the more legalistic ideas of Li Kui and Shang Yang, and more administrative Shen Buhai and Shen Dao,^[9] with Shen Buhai, Shen Dao, and Han Fei traditionally said to be rooted in Huang-Lao (Daoism), as attested by Sima Qian.^[3] Shen Dao may have been a significant early influence for Daoism and administration.^[10] These earlier currents were synthesized in the Han Feizi,^[11][12] including some of the earliest commentaries on the Daoist text Daodejing. The later Han dynasty considered Guan Zhong to be a forefather of the school, with the Guanzi added later. Later dynasties regarded Xun Kuang as a teacher of Han Fei and Qin Chancellor Li Si, as attested by Sima Qian,^[13] approvingly included during the 1970s along with figures like Zhang Binglin.^[14]

With a lasting influence on Chinese law, Shang Yang's reforms transformed Qin from a peripheral power into a strongly centralized, militarily powerful kingdom, ultimately unifying China in 221 BCE. While Chinese administration cannot be traced to a single source, Shen Buhai's ideas significantly contributed to the meritocratic system later adopted by the Han dynasty. Sun Tzu's Art of War recommends Han Fei's concepts of power, technique, wu wei inaction, impartiality, punishment, and reward. With an impact beyond the Qin dynasty, despite a harsh reception in later times, succeeding emperors and reformers often recalled the templates set by Han Fei, Shen Buhai and Shang Yang, resurfacing as features of Chinese governance even as later dynasties officially embraced Confucianism.^[15]

The Han Feizi's lineage

One of Sima Tan's (165–110 BCE) six schools of thought discussing approaches to governance in the last chapter of the early Han dynasty's Records of the Grand Historian,^[16] those the Confucian archivists listed under the abstract school or family (Jia 家) of fa, as including standards, laws, and methods, were probably never an organized school like the Confucians or Mohists.^[17][18] Not mutual partisans of a specific school of law,^[19] they were focused on reforming law and administrative technique because they were from the ruling aristocratic administrative class,^[20][21] with the exception of the otherwise Daoistic scholar Shen Dao, who was paid to write about it.^[22]

With the Han Feizi as Shang Yang's first external reference,^[23] their combination likely stems from the Han Feizi's chapter 43 discussion of Shang Yang and Shen Buhai,^[24][25] with Shen Buhai ultimately confused as a Legalist.^[26] Likely taking Shang Yang as exemplar,^[27] Liu Xin conflates them as Legalist,^[28] but Han Fei did not consider his predecessor Shen Buhai as apt a legal reformer as Shang Yang.^[29] Later termed Xing-Ming, the administrative doctrine of he developed would not have required law,^[30] defined by Liu Xiang as supervisory technique (shu) replacing punishment.^[31] Earlier recalled by the late Qin's encyclopedic Lushi Chunqiu,^[32] Shen Buhai likely influenced the Qin dynasty, but would have had a more moderate, administrative influence than Shang Yang,^[33] only considered strict after Sima Tan's time.^[34]

Xing-Ming is mistranslated as punishment after the Han dynasty.^[35] Before the Shiji, if Li Si practices Shen Buhai's doctrine, then he would theoretically supervise ministers, simply decoupling Sima Qian's definition of Qin supervision as penal.^[36][37] The Han Feizi's Chapter 7 adds systematic reward and punishment to supervision,^[38] but Qin law is "not extraordinarily severe for it's time",^[39] sentencing ministerial corruption based on the law abused.^[40] Not that different from early Han law, mutilation like that of Sima Qian's more likely represents a lapse in Qin and Han clemency than a common penal practice of either dynasty, generally willing to work out alternatives.^[41]

Han Fei and Shen Dao

Though Shang Yang and Shen Buhai were contemporary, before the Han Feizi, they were all influential in different places and times.^[42][23] The Han Feizi's Chapter 43 recalls Shen Buhai and Shang Yang as two different schools (家 jia), with Shang Yang more focused on fa as including law, and Shen Buhai fa (administrative) method, differentiated as Shu technique.^[43][18] Only having recently encountered Shang Yang's current, there was no mutual, practical Shang Yangian Legalist school based on the Han Feizi between them in Han Fei's own time, because the late Han Feizi's legal philosophy was theoretical.^[44]

Criticized by Xun Kuang as "obsessed with fa" (laws and methods),^[45] Shen Dao is discussed Han Feizi's chapter 40 for his views on power.^[46][47] But while the broader Doctrine of Position does have a major influence for the Han Feizi,^[48] Shen Dao's was a more naturalistic conception of power resembling the Zhuangzi, depicted as floating relying on such things as the wind.^[49] Where Han Fei has a Way of the Ruler based in controlling ministers,^[50] Shen Dao does not believe the Way of Order lies with the ruler. Shen Dao's earlier Doctrine of Position emphasizes relying on worthy ministers placed in proper positions.^[51] Han Fei's doctrine of position relies more on institutions in the late period, as to make it more comparable with the late Mohists.^[52]

When he isn't grouped with other works on fa laws and methods in the Han dynasty, before Han Fei, Shen Dao belongs more with Laozi, Yang Zhu, and Zhuangzi,^[53] contrasting with the individualist Yang Zhu.^[54] Listed in the Outer Zhuangzi after Mozi and (the Mohist) Song Xing, but before Laozi and Zhuangzi, the more administrative Shen Dao shares content with the (likely earlier) Inner Zhuangzi.^[55] Earlier recalled in Chapter 36, the Han Feizi's Chapter 40 discussion of Shen Dao quotes a shield parable from a known lost chapter of the Zhuangzi, with the Han Feizi likely containing even more unknown Zhuangzi content.^[56] Shen Dao was less focused on Dao in a cosmic sense than later Daoist texts,^[57] but his "Way of Heaven" can be directly compared with Laozi, emphasizing that the Way of Heaven benefits and does not harm.^[58]

Han Feizi 43

A late 19th century edition of the Hanfeizi by Hongwen Book Company

As chancellors of neighboring states, Shang Yang's and Shen Buhai's doctrines would have intersected by the Qin dynasty, and the Han Feizi is Shang Yang's first external reference. The Han Feizi would suggest that works, laws and methods associated with Shang Yang and Guan Zhong, may have broadly circulated at that late time.^[59] Though contrasting Shang Yang and Shen Buhai,^[60] chapter 43 ("Ding fa" 定法) of the Han Feizi likely contributed to their association,^[61] and a Shang Yangian Legalist interpretation of what the Confucians later called the Fa school.^[62]

Chapters 43 and Shen Dao's chapter 40 shaped an early modern elementalizing view of Shen Buhai as focused on Shu (technique), Shen Dao on Shi (power), and Shang Yang on law, uncritically taking the Han Feizi as superseding the others.^[63] But Shen Dao’s fragments suggest he was also focused more on fa law and administration, as Xun Kuang criticized. With foundational but less technically complex administrative ideas than Shen Buhai, Han Fei discusses him in relation to shi power,^[64][65] but may have been more broadly influential in his time.^[66]

Recalling his own state's Shen Buhai as representative, Han Fei differentiates Shen Buhai's administrative method (fa) under the term Shu 术 administrative Technique, kept in the hands of the ruler.^[67] Shu is defined here as examining the abilities of ministers, appointing candidates in accordance with their capabilities, holding ministerial achievements or "performance" (xing "forms") accountable to their proposals or "titles" (ming "names") as becoming offices, and grasping fast the handles of life and death.^[68] Though not complete until after the fall of the Han dynasty, the meaning of Xing 刑 is gradually lost as punishment.^[69]

With the Book of Lord Shang by contrast paying little attention to governing the administration itself,^[70] taking Shang Yang as representative, Han Fei considered fa (standards) necessary, as including law, decrees, reward and punishment. This contributes to a view of Shang Yang as a Legalist focused only on penal law, but Shang Yang and the Book of Lord Shang also had many administrative and military reforms in their time. Most Chinese later learned about Shang Yang through Sima Qian, who also attributes many reforms to him.^[71][72][73]

According to the doctrine of fa, laws and decrees are promulgated to the government offices; the inevitability of deserved punishment is impressed upon the minds of the people; rewards are reserved for those who are careful to respect the laws, and punishments are inflicted upon those that violate orders; it is what the subjects and ministers take as model.^[74]

Late intersection

Early Warring States period

Located to the then-remote mountainous west in relation to central China, the early Qin state was relatively insignificant before Shang Yang's reforms, increasing in power drastically thereafter. But Central Chinese thinkers were likely unfamiliar with him or the Book of Lord Shang until just before imperial unification.^[75] With Han Fei being Shang Yang's first external reference,^[23] doctrines associated with the Daoistic Shen Dao (and later Zhuangzi^[76]) might have played a more major early influence in central China,^[77] in connection with the flourishing Jixia Academy.^[78]

Shen Dao or similar doctrines have an influence in a later part of the Book of Lord Shang,^[79] and a chapter in the Han Feizi (Ch40),^[80] sharing the doctrine on positional power with the late Guanzi.^[81] Not explicitly familiar with what were later called Daoist or Legalist schools,^[55] apart from Shen Dao, the Zhuangzi references central Chinese figures from the school of names,^[82] which includes central Chinese practitioners of law.^[83]

It is not as evident that Shen Buhai was as influential as Shen Dao until later in the period,^[66] with what Han Fei called Shen Buhai's Shu technique a more secretive doctrine earlier, as the Han Feizi states.^[84] Reversing their traditional chronology, Sinologist Herrlee Creel speculated that Shen Buhai might have influenced Laozi and Zhuangzi, but the Zhuangzi references Shen Dao instead;^[54] Shen Buhai's wu wei employment of ministers influences the Daoistic Huainanzi in the Han dynasty.^[85]

Preceding Han Fei, the late Xunzi is familiar with Shen Buhai, Shen Dao, and the Qin, but not Shang Yang.^[86] Sometimes compared with Shang Yang modernly, the late Guanzi has comparable "Xing-Ming" administrative doctrines to Han Fei.^[87] The Huangdi Sijing has influences comparable to Shen Buhai, Shen Dao and Han Fei, but with direct Shen Dao influences most evident.^[88] Seeking to "comprehend all knowledge" akin to the later Shiji,^[89] the late Qin state's encyclopedic Lushi Chunqiu incorporates a selection from Shen Buhai's doctrine.^[32]

Early influences

With the Han Feizi as Shang Yang's first reference,^[23] the traditions of Shen Buhai, Han and later Han Fei might earlier have been influenced by the prominent Chu state to the south, older neighboring law reformers like the significantly influential Zichan, or speculatively the Wei state's Li Kui, but more in the broad sense that they all sought more meritocratic governance.^[90][91] The Han Feizi more evidently integrates "traditions associated with" Li Kui;^[92] but Shen and Han (state) tradition would still more plausibly encounter it before Shang Yang,^[93] and was more focused on education than Shang Yang.^[54] The Han Feizi pairs Shang Yang with Wu Qi from the Chu state as a model reformer;^[94] Wu Qi's reforms were just not as successful as Shang Yang.^[54] It also quotes Zhao Yang from the earlier Jin state.^[95]

Later opposed by Han Fei, though there is no direct evidence Zichan influences Shen Buhai, his current is still a plausible influence for the Han state preceding Shang Yang.^[96] The Han Feizi reacts against the much earlier Zichan. Opposing him with Shen Buhai's doctrine Han Fei termed Shu technique, and a purported reliance by Zichan on his own wisdom and senses as a detective, the Han Feizi advocates legal officials, manageable populace divisions, and clarifications of rules and measures, followed after using standardized administrative technique (fa-shu) as inherited from Shen Buhai.^[97] Arguably, the Huangdi Sijing would go back to Zichan and Guan Zhong as well.^[98]

Confucian interpretive category

Book of Han or Hanshu, carved in the Ming dynasty, in Tian Yi Chamber Library collection

Starting with Dong Zhongshu, many traditional and modern scholars saw the Qin dynasty as a break from Confucianism, while viewing the Han as continuing its instistutions.^[99] With Confucianism not dominant until about 100 B.C.,^[100] Sima Qian’s Shiji saw Shen Buhai, Shen Dao, and Han Fei through an early Daoist context,^[101] likely influential among Chinese officials outside stratocracy dating back to at least the late Warring States period.^[102][103]

Later Han scholars Liu Xiang (77–6 BCE) and Liu Xin (c. 46 BCE–23 CE) used Fajia as a category of Masters Texts in the imperial library. It would become a major category in Han dynasty catalogues, namely the Han state's own Book of Han (Hanshu, 111ce). Alongside the Book of Lord Shang, Shen Buhai, Shen Dao and the Han Feizi,^[104] six other texts were listed under it, now lost,^[105] including Li Kui and Chao Cuo (Hanshu CH1), leaving four unidentifiable works.^[14] The Hanshu's Ch30 Journal of Literature considered Li Kui the first of broader works on regulations, influencing Shang Yang.^[106][107]

Beginning with Mencius and Xun Kuang, Confucians argue the "true" or "deeper" meaning of things by redefining them, with Xun Kuang redefining terms and narratives to "defy the claims the claims of rival philosophers" and support the moral superiority of Confucian heroes.^[108] Likely based on the Han Feizi's pairing of Shang Yang and Shen Buhai, a confused conflation develops over the Han dynasty. Glossed together with their figures and the Qin dynasty, as used by the Confucians, Fajia and Legalism would represent two different, successive categories, with the latter redefining the former.^[109]

Arguably including several of those listed under the fa school,^[110] the revision essentially redefines (hypermediates) and sorts texts, notably under Zajia, that would otherwise be interpreted in the context of Tan's "Dao school" (Daojia) in the Shiji. The Hanshu redefines Daojia as "wishing to cut off and eliminate ritual learning and concurrently abandon humanity and duty, saying that the employment of purity and vacuity alone can be used to rule."^[111]

• A flawed category originally orbiting Sima Tan's Dao school (Daojia) in a closing argument for political "Daoism", Tan (and Liu Xiang) described the fa school (Fajia) as emphasizing administrative protocols that ignore kinship and social status, treating everyone equally and thereby elevating the ruler above humanity.^[112] Tan praises Fajia for honoring rulers, and subordinating subjects, clearly distinguishing offices so that no one oversteps [his responsibilities]. He criticizes Fajia as strict with little kindness, as a temporary policy that could not last.^[4] Although described as strict, Sima Tan (and evidently Liu Xiang) "clearly" understood that standards (fa) were used in the administration, like Shen Buhai, and not just penal law like Shang Yang.^[113]
• Included in the Book of Han by Ban Gu, Liu Xin adds that Fajia "make reward certain and punishment unvaoidable, as a support to control by (Confucian) ceremony", rejecting teaching and benevolence, and concern for others, aiming to perfect government relying only on punishment and law, inflicting corporal punishment even on closest kin, and demeaning mercy and generosity.^[114] Hence, the Confucians come to describe what they termed the Fa school as akin to a harsh Shang Yangian legalism.^[115] At least according to Han Fei, Shen Buhai was not a legalist.^[29] However, ancient Confucian bibliographic classifications arguably "do not pretend" to be uniformly precise, or "imply strict separation."^[14]

Less "systematically reviewed" in mainland China modernly, a Legalist interpretation of the Guanzi is prominent in Taiwan, focusing on comparable parts of the text. However, rather than Shang Yang and Qin, Li Mian (1983) compares it with the tradition of the Qi state, i.e. as a birthplace of Guan Zhong having the Jixia Academy and Shen Dao, governing the state more with regulations than harsh penal law. Though some chapters are more penal (36,67,73), the Taiwanese scholars considered the Guanzi more focused on encouraging people towards achievements and stopping violence, with law based on a natural Dao created by the sovereign.^[116]

Shiji

See also: List of chapters in Shiji

Sima Qian's Records of the Grand Historian or Shiji, 1982 printed edition by the Zhonghua Book Company

Primary arguing for the Dao school (Daojia, later "Daoism"), Sima Tan did not name anyone under the schools; ancient China references doctrines only by the names of texts and Masters (Zi). Tan appears to have coined the abstract School of Fa (laws and methods) in an essay discussing approaches to governance.^[117] Preceding Confucian bibliography, apart from Shang Yang, its figures would otherwise be interpreted in relation to Tan's Dao school (Daojia) as the ruling ideology of the Shiji, along with some other texts like Zajia.^[111]

Xun Kuang criticized Shen Dao as "obsessed with fa", but not Shen Buhai, and no one can be seen to have used Fajia as an ideological term for himself or his opponent in the Warring States period. The rare term likely only meant "law-abiding families" in Mencius's time, and later something like "methods expert in economic affairs" in the Guanzi.^[118] Though characterizing Shang Yang as "a man of little kindness",^[119] Sima Qian may well not have regarded Fajia as referring to a combination of Shang Yang and Han Fei, simply giving Shang Yang his own chapter.^[120]

Recalling Shang Yang and Shen Buhai from the Han Feizi, Sima Qian's Shiji blames Li Si as abusing Shen Buhai's doctrine under the Second Emperor, depicting them as restoring the old harsh penal law of Shang Yang.^[121] But the Shiji regards Shen Buhai as implementing the Way in his own time.^[122] He has still modernly been argued to have been a more cooperative figure than Han Fei.^[123]

In the eighth year, Shen Buhai was appointed prime-minister of Han. He rectified the state’s shu (technique) and implemented the Way. The country was well-governed within, and regional lords did not dare attack. Shiji 45

"Daoism"

A partisan of what Sima Tan called Daoism, Sima Qian could be expected to argue from its point of view, likely referring to both dao and de.^[124] Although considering Han Fei cruel,^[125] Sima Qian discusses him and Shen Buhai alongside Laozi and Zhuangzi,^[126] taking them as originating in dao ("the Way") and de (inner power, virtue), or "the meaning of" the Way and its virtue (Daodejing).^[127] Sima Qian considered Laozi the most profound of them, but of the four, places Shen Buhai just below Laozi and the free-spirited Zhuangzi.^[125]

The Way that Laozi esteemed was [based on] emptiness; thus, he reacted to changes through non-action. Hence the words of his book are profound and subtle and are difficult to comprehend. Zhuangzi was unfettered by the Way and virtue and set loose his discussions; yet his essentials also go back to spontaneity. Master Shen Buhai treated the lowly as lowly, applying to it the principle of “names and substance (Ming-shi 名實).” Master Han Fei drew on ink line, penetrated the nature of the matters, and was clear about right and wrong. But he was extremely cruel and had little compassion. All these ideas originated from the meaning of the Way and its virtue, but Laozi was the most profound of them. Shiji 63

Later termed Daoist, A.C. Graham takes the Zhuangzi as preferring a private life, while the Daodejing (Laozi) contains an art of rule. Xun Kuang does not perceive the two as belonging to one school in his time, listing them separately.^[128] Sima Qian attested Shen Buhai, Shen Dao and Han Fei as "rooted" in Huang-Lao or "Yellow Emperor and Laozi (Daoism)".^[129] Hence, Shen Buhai is said to be rooted in a kind of ruler or (Yellow Emperor) centered,^[130] Laozi "Daoism" in the Shiji.^[131]

Synonymous with Daojia ("Daoism") in the Shiji, Tan's "Dao school" bears more resemblance to what they described as Huang-Lao than a Laozi-Zhuangzi Daoism.^[132] From the Outer Zhuangzi's perspective, the period has early comparable figures like Shen Dao, ranked before Laozi and Zhuangzi. If he preceded Laozi, the early period does not know a Daoist school as such per se, instead stemming from such currents as his.^[133] Sima Tan's Daojia only comes to mean something like Daoism as modernly understood a hundred years after Sima Qian. Narrowed down to Laozi and Zhuangzi as basic examples, it comes to refer to Laozi and Zhuangzi as the Zhuangzi regained popularity in third century A.D.^[134][135]

Doctrines of names

The Han Feizi advises that the ruler follow after rules and measures using standardized administrative technique (fa-shu) as inherited from Shen Buhai, employing legal officials for this purpose.^[97] Following the Han Feizi,^[136] Shang Yang, Shen Buhai and Han Fei were often identified under its "Xing-Ming" doctrine of "forms and names",^[137] as ministerial management for Shen Buhai and Han Fei,^[138] but with Shang Yang more focused on programs including fa law.^[139]

With Sima Qian earlier identifying the three figures under Xing-Ming,^[140] it continued continued to serve as a secondary moniker for them.^[4] Sima Qian's Shiji attests the First Emperor as proclaiming Xing-Mings's practice.^[141] Though it is questionable that Xing-Ming was an integrated part of a legal system in Shen Buhai's time,^[142] it arguably is in Sima Qian's model of the Qin empire.^[143]

“The Qin (or "great") sage looks down at his state. In the beginning, he fixed Xing-Ming; manifested and displayed old statutes, started leveling laws and models, meticulously distinguished duties and tasks, so as to establish constancy and permanence” 秦(泰?)聖臨國，始定刑名，顯陳舊章，初平法式，審別任職，以立恒常. Sima Qian's Li Si, Shiji Ch63^[144]

Contrasting with Laozi,^[145] Han Fei and the Qin break from a Huang-Lao Daoist Xing-Ming focusing on a Way of Heaven based on with an inner reason of laws. Han Fei and Qin have an increased interest in law, but are more concerned with law as a means of control than whether it accords with a Way of Heaven. Han Fei refers to a Way of the Ruler or Sovereign.^[143] Shen Dao, the Huangdi Sijing, and Laozi still referred to a more conceptually "naturalist" Way of Heaven.^[146]

The Han Feizi's Chapters 5 & 7 have examples of its doctrine,^[147] included under fa method / shu technique in chapter 43.^[148] The Confucians likely reference the laws and methods of chapter 43,^[67] while Sima Qian likely references earlier chapters like the "Daoistic" Xing-Ming administration of Chapter 5,^[149] splitting Shang Yang off into his own chapter.^[120]

Empty and inactive, he waits, making titles name themselves, and making assignments determine themselves. Those who have proposals produce their own titles, and those who have assignments produce their own performance. When performance and title match each other, the ruler does not need to be involved – he lets them revert to what they really are. Chapter 5 主道 The Way of the Ruler. Christoph Harbsmeier, 2025 ed. Østergaard Petersen and Yuri Pines

A sovereign who wants to suppress treachery must examine and match performance (the form, xing 形) and title (the name, ming 名). Performance and title refer to the difference between the proposal (言 speech, words) and the task. The minister lays out his proposal; the ruler assigns him the task according to his proposal, and solely on the basis of the task determines [the minister’s] merit. Han Feizi Ch7. Chen Qiyou 2000 ^[150]

"Daoism"

Informally associated by the Han Feizi with Laozi,^[151] The Han Feizi traces its specific idea of Xing-Ming back to Shen Buhai, likely going back to the name and reality debates of the Later Mohists, Xingming school of forms and names, and Confucian rectification of names, whose terms Shen Buhai still used even if the Han Fei contrasts with them.^[152] With the Qin's Book of Lord Shang only visibly intersecting central Chinese tradition with the Han Feizi,^[23] something akin to what Sima Qian termed a Huang-Lao "Daoism" would theoretically grow to dominance among the Chinese officialdom by the time of the Qin dynasty.^[102]

Sima Qian pairs the two, saying "Shenzi (Master Shen) was rooted in Huang-Lao (Daoism) and prioritized xingming."^[153] Sima Tan criticizes strict administrative practices in favor of his Daoism,^[154] but Han Fei does not develop mechanically strict Xing-Ming until the end of the Warring States period.^[155] Sima Tan clearly includes Xing-Ming as part of his Dao school (Daojia), in less technical terms.^[156]

When the congregation of ministers has assembled, the ruler lets each one state what he will do. If the actual result coincides with his claim this is known as the 'upright'; if the actual result (Xing "forms" for Han Fei) fails to coincide with his claim,(Ming) this is known as 'hollow'. Sima Tan^[156]

Together with a Huang-Lao tradition placing greater emphasis on (standards) fa, Sima Qian may have paired Laozi and Zhuangzi with Shen Buhai and Han Fei because the latter two "prioritized xingming", important in the recovered texts.^[157] The Sijing considering matching realities (Xing) with speech and the "names" of things (ming) an important part of "implementing the Way of Heaven", both in administrative and more general terms.^[158] While the Han Feizi's Way of the Ruler may not as directly emphasize concepts of Yin Yang, the Huangdi Sijing does. Analyzing Yin and Yang to ensure reliable results, it similarly matches "names" and "realities" (shi) as a practical way to appoint, monitor, and assess ministers.^[159]

Though by its own statements the Zhuangzi generally favors self cultivation,^[160] differing "dramatically" from prior chapters,^[161] the Outer Zhuangzi's "Way of Heaven" gave secondary places to Xing-Ming administrative ideas akin to Shen Buhai. Emphasizing priorities in-order of wu wei, dao, de, benevolence, appointment and investigation, and finally reward and punishment, A.C. Graham interpreted its hierarchy as emphasizing the wu wei reduced activity of the ruler, mainly criticizing those who reverse its priorities.^[162]

Shang Yang

There is not evidence that Shang Yang literally studied Shen Buhai or his same Xing-Ming doctrine.^[163] But doctrines of names have a broader environment. Though not the same, the Book of Lord Shang does include a "doctrines of names". Their examples could help explain why Sima Qian included him under the Xing-Ming doctrine of Forms and Names, theoretically validating its framework.^[164]

When the sage makes a law, he must make it clear and easily understandable. When the names (ming; words) are correct, both the ignorant and the knowledgeable can understand them. Book of Lord Shang Ch26. 故聖人為法，必使之明白易知，名正，愚知徧能知之^[143]

Though one doctrine employs officials and another forms and clarifies laws, from Han Fei's perspective, fa method and fa law are both techniques of government,^[97][165] or "tools of kings and emperors" for governing the state.^[166] Han Fei differentiates fa law and shu technique for contrast, comparison and clarification, but both are fa.^[18]

Translator Yuri Pines took the Book of Lord Shang's primary doctrine to be that of connecting people's inborn nature (qing) or dispositions (different xing 性) with names (ming 名). 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." 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 can pursue these, they will be less likely to commit crimes, and more likely to engage in hard work or fight in wars.^[167]

Wu wei

Later traditionally taken as a (Laozi) Daoist rooted via Sima Qian, and unanimously accepted as Daoist-rooted in early scholarship, Sinologist Herrlee G. Creel did not believe that Shen Buhai was a (Laozi) Daoist in his own time, questioning their chronology. More administrative, and somewhat Confucianistic, Shen Buhai most resembles the Han Feizi, and may have preceded the Laozi and "Huang-Lao." But if so, he does bear a "striking" resemblance to Laozi. Some Chinese scholars would take Sima Qian's account as factual,^[168] still modernly taking him as a practical political thinker "containing elements" of "so-called Huang-Lao Daoist thinking".^[169]

Zhuangzi typically refrains from actions more generally, but Laozi does have a similar idea of wu-wei (non-action) to Shen Buhai at least in the sense of using it as a governmental technique.^[170] 'Underlying' the management of ministers,^[171] Shen Buhai and Han Fei have ideas of wu wei differing from Laozi and Zhuangzi, inasmuch as Chancellor Shen Buhai and his ruler only "demonstrate" non-action, rather than actually being inactive.^[172]

Appearing to be inactive, Shen Buhai's ruler should vigilantly oversee but not be personally involve in ministers' duties.^[172][170] Shen Buhai's ruler does still try to reduce activity in the sense of relying ministers and technique. A parable from the Lushi Chunqiu encourages the ruler to try to rely on technique rather than judge such affairs as livestock personally. If the ruler has to stoop to judging livestock personally, reliance on his personal judgement will cause quarreling with the ministers.^[32]

While not entirely aligning with Laozi or Zhuangzi, the Huangdi Sijing switches to an active posture at "the right moment" as another alternative model of wu wei from the period.^[173] Recalled alongside Laozi and Zhuangzi and not just Shang Yang and Han Fei, Shen Buhai would have early been accepted as a kind of "Daoist" as the category came into formation, except by preferential Zhuangzi experts, overcoming the strong with a wu wei practice of "inactivity" that Creel compared with Judo.^[174]

The skillful ruler avails himself of an appearance of stupidity, establishes himself in insufficiency, places himself in timidity, and conceals himself in inaction. He hides his motives and conceals his tracks. He shows the world that he does not act. One who shows men that he has a surplus has his possessions taken from him by force, but to him who shows others that he has not enough, things are given. Therefore, those who are near feel affection for him, and the distant think longingly of him. The strong are cut down, those in danger are protected. The active are insecure, the quiet have poise. Ch’ün-shu Chih-yao (Qunshu Zhiyao) 36 (Shen Buhai, Wei Zheng)

Sinologist Hansen argued China's officialdom as becoming more Huang-Lao (Laozi) "Daoistic", lacking in Zhuangzi influences.^[102] While the Confucians classify the Lushi Chunqiu as Zajia ("Syncretist") rather than Daojia ("Daoist") or Fajia ("Legalist"), in the terms of older older scholarship, it contains a "Daoist-Legalist" fusion comparable to Shen Buhai, Shen Dao, Han Fei, Guanzi and the Mawangdui Huangdi sijing. Though incorporated under the military regime of the late Warring State's Qin state, it includes a selection from Shen Buhai's doctrine (Ch "Zhushu"), with additional content from its "Ren shu" chapter demonstrating that a philosophy promoting the wu wei reduced activity of the ruler goes back to the Warring States period.^{[175][176][177]}

That which can be known and recognized by the ears, eyes, mind and wisdom is very superficial and incomplete, and are not sufficient to depend on. If you do not rely on them, there will be order; if you rely on them, there will be chaos. Using what is superficial to rule broadly under heaven, pacify divergent practices, and rule the myriad people - this certainly cannot succeed. The ears cannot hear a space of ten li; the eyes cannot see outside a curtain or wall; and the mind cannot know every house of three mu. Zhu shu, Shen Buhai

To follow is the method of the ruler; to act is the way of the minister. If (the ruler) acts, he will be troubled, if he follows, he will find peace. To follow the winter when it produces cold and the summer when it produces heat, why should the ruler do anything? Therefore to say: 'The way of the ruler is to have no knowledge and no action, but still he is more worthy than those who know and act,' that is to get the point. (Ren shu)

Old Daoistic conservatism

Contrasting him with Shang Yang, the Han Feizi takes Shen Buhai as a more successful administrator, but less successful legal reformer.^[61] While later influential, the Han Feizi says Shen Buhai's laws were disordered in the early Han State, issuing new laws without retracting the older ones.^[29] While Creel generally translated his fa as (administrative) method, law can be argued a better translation in some cases,^[178] just as the Book of Lord Shang has administrative method in some cases (Ch10).^[179]

The sage kings depended on laws (fa, arguably including methods^[180]) instead of wisdom in government. They employed quantitative measures (数 Shu enumeration; figures, numbers^[180]) instead of (impractical) theories. When the Yellow Emperor ruled over all-under-Heaven, he formulated laws (fa) and never changed them in order to make the people satisfied and pleased with the laws. Shen Buhai, Taiping Yulan. Leo S Chang, interpreted in the context of the Huangdi Sijing^[181]

Similarly to Shen Buhai, though shifting with events and politics the Huangdi Sijing and Guanzi continued to believe in a constant Way of government and law, which the Sijing opposes changing. Emphasizing the Way as "the source of (fa) laws", the latter oppose "replacing the fa (law) with personal desires".^[182]

In general, one must not discard laws and replace them with personal desires. Personal desires must not be used (as standards of conduct), otherwise disasters will befall. Sijing Chapter 3 ^[182]

As with Shang Yang, the Han Feizi prominently seeks to reform the law in accordance with the times,^[4] contrasting with the minimalism of Laozi. An example of what Yuri Pines considered the work's "most sophisticated blend" with "Laozi-related ideas" can be found in Chapter 29. Wrapping in laws and techniques in Laozi rhetoric, Han Fei circle arounds, falling back on what has "commonly been dubbed" Huang-Lao in Han Dynasty terms, or what Randall Peerenboom termed the "foundational naturalism" of the Huandgi Sijing, containing "precisely" the same idea of a "cosmic natural order", serving as a "basis, or foundation, for construction of human order."^[183]

Those in ancient times who preserved the Great Body intact... adapted to the mountains and valleys... consigned matters of order and chaos to laws and techniques, entrusted matters of right and wrong to rewards and punishments, and deputed questions of light and heavy to the scales and weights. They neither acted contrarily to Heaven’s patterns, nor harmed their nature. They kept to the established pattern and adapted to what was so by itself. People’s bad or good fortune originated in the law (or standard, fa) of the Way, and did not emerge from the ruler’s love or hatred. (Han Feizi 29.1; Chen 2000: 555) ^[183]

Advancing standards

Though the Han Feizi still recommends the ruler "use the law of the early kings as a ruler", Shang Yang, Han Fei (and possibly Shen Dao, including ideas of circumstance^[184]) do not accept permanent laws or Ways of government. While the Sijing still emphasized wisdom, those the Confucians called Legalists emphasize fa impartial standards over the ruler's own personal wisdom.^{[185][176][186]} Fa is (sometimes) illustrated using Mohist engineering concepts of comparative measurement standards (fa), as applied to both craft and language including law.^[187]

Dismissing standard scales and yet deciding weight, or abolishing feet and inches and yet forming an opinion about length; even an intelligent merchant would not apply this system, because it would lack definiteness... Now, if the back is turned on models (fa) and measures, and reliance is placed on private appraisal, in all those cases there would be a lack of definiteness. Shangjunshu^[181]

If the lord of men abandons fa (standards, laws, methods) and governs with his own person, then penalties and rewards, seizures and grants, will all emerge from the lord's mind... those who receive (commensurate) rewards will ceaselessly expect more; those who receive (commensurate) punishment, will endlessly expect leniency... people will be rewarded and differently for the same fault and merits. Resentment arises from this. Shen Dao, Qunshu Zhiyao, Wei Zheng ^[142]

The skillful carpenter, though able to mark the inked string with his surveying eyes and calculating mind, always takes compasses and squares as measures before his marking... To govern the state by law (fa, objective standards) is to praise the right and blame the wrong. Han Feizi.^[181]

Positional power

Placed before Shen Buhai and Shang Yang in the Han Feizi's outer chapters,^[188] the Han Feizi discusses Shen Dao in relation to power, but Shen Dao's was a naturalistic conception of power resembling the Zhuangzi;^[49] Han Fei's own doctrine is more institutional,^[189] but does defend Shen Dao. Shen Dao's ruler was a "single esteemed person", intended to benefit all under heaven against ministerial oligarchies. Han Fei's discussion does not advocate tyranny, but that most rulers are mediocre, and should rely on institutions.^[190] With Chapters 11 as 49 examples, the doctrine is represented throughout the Han Feizi, which says that authority and positional power cannot be shared; when the ruler loses his authority, his ministers will gain a hundredfold, taking over the state.^[81]

Han Fei's own doctrine is more institutional,^[189] but does defend Shen Dao. Han Fei's discussion does not advocate tyranny, but that most rulers are mediocre, and should rely on institutions. Shen Dao's ruler was a "single esteemed person", intended to benefit all under heaven against ministerial oligarchies.^[190] With Chapters 11 as 49 examples, the doctrine is represented throughout the Han Feizi, which says that authority and positional power cannot be shared; when the ruler loses his authority, his ministers will gain a hundredfold, taking over the state.^[81]

Yuk Wong (Encyclopedia of Chinese Philosophy) places law and prestige together in the Guanzi in what he considered seven Legalist chapters, with prestige and power more important than rank or wealth. Law may be more important than even the king, but will likely fail if he is does to follow it. The power to punish is only one kind; the Guanzi has civil power, military power, and benevolent power.^[54]

Agriculture and war

See also: Discourses on Salt and Iron

With the Book of Lord Shang emphasizing legal standards (fa), Han Fei and the Han dynasty saw Shang Yang as focusing on penal law. Along these lines, Sinologist Herrlee G. Creel's early work accepged accept Shang Yang as more or less Legalist, arguing Shen Buhai more administrative. But Shang Yang and the Book of Lord Shang's programs were broader than penal law. Han Fei elementalizes him under fa,^[191] but he too treats his fa (standards) as a broader standardized sociopolitical program, not just penal law.^[192] The Book of Lord Shang advocates laws, but its main goal is a "rich state and powerful army." Its programs are tools to "unify all under heaven", and establish the next dynasty.^[193] Agriculture and war may have been Shang Yang's "single most important slogan."^[194]

During the early Warring States period, ministerial recruitment aimed to establish universal census, taxes and military service as part of mobilization efforts. The Book of Lord Shang represents an extreme example of the early trend, the only surviving work of its kind. Extending to the population, the Qin organized society on a military basis as familial, mutual responsibility groups of five and ten for military recruitment. The Qin's military reorganization was a major achievement that shaped its overall policy.^[195] Liu Xin may focus on law and harsh punishment, but Sima Qian lists this reform as the first of Shang Yang's accomplishments.^[196]

Fa (law) could be considered a first principle of the Book of Lord Shang, but is focused on state power, advocating a rich, centralized state, with a powerful army. Shang Yang's economic and political reforms were unprecedented, and far more significant than his personal military achievements. But he was as much a military reformer, possibly even standardizing the road network for military purposes, and did personally lead Qin to victory over Wei. The Han also recognized him as a military strategist. A work attributed to him, possibly the same, is also listed under the Han Imperial Library's Military Books under Strategists.^[197]

Translator Yuri Pines took the Book of Lord Shang's primary doctrine to be that of connecting people's inborn nature or dispositions (xing 性) with names (ming 名). 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." 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 can pursue these, they will be less likely to commit crimes, and more likely to engage in hard work or fight in wars.^[167]

A figure in the Stratagems of the Warring States, although not the primary focus of his administrative treatise, Shen Buhai was both a diplomat and military reformer, at least for defense, and is said to have maintained the security of his state.^[198] Although Xun Kuang is probably accurate in considering Shen Dao to be focused on fa administrative standards,^[199] as introduced by Feng Youlan he was remembered in early scholarship 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. He only uses the term twice in his fragments.^{[200][201][202]}

Changing with the times

The people of Qi have a saying – "A man may have wisdom and discernment, but that is not like embracing the favourable opportunity. A man may have instruments of husbandry, but that is not like waiting for the farming seasons." Mencius

The early work of 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.^[203] Earlier thought to be rare, in fact, a changing with times paradigm, or one of timeliness, "dominated" the age. Yuri Pines (Stanford Encyclopedia) takes Shang Yang and Han Fei's more specific view of history as an evolutionary process as contrasting. It might have influenced an end of history view expressed by the Qin dynasty,^[204] but would be a radical departure from earlier ideas.^[205] The Qin idea of an eternal dynasty would seem more connected with that of relying on law rather than the ruler.^[206]

In what A. C. Graham took to be a "highly literary fiction", as Pines recalls, the Book of Lord Shang's chapter 1, "Revising the laws," 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 compared 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 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 considered 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. Han Fei "objects to ancient authority" not only because the times have changed, but because the past is uncertain.^[207][4]

Taking Shang Yang as inheriting from Li Kui and Wu Qi, despite anti-Confucianism in the Shangjunshu, professor Ch'ien Mu still considered that "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.^[208] Making use of the term, Shen Buhai does have administrative ideas that go back to the Confucian rectification of names, or cheng ming.^[87]

Sinologist Hansen viewed the morally neutral naturalism of Shen Dao as a development of the type of thinking seen in Mencius and early Mohists, beginning to emphasize a concept of Dao over nature.^[209] Shen Dao promotes a "Way of Heaven", but the concept doesn't appear to have been as developed in his time, or focus on it as much as later texts.^[210] Hansen took Shen Dao and Han Fei as aiming at what they took to be the "'actual' course of history", with Han Fei concretizing Shen Dao's ideas on circumstantial authority, and a changing with the times paradigm introduced in its first chapters, under the Dao or "Way" of Laozi,^[184] combined with Shen Buhai in Chapter 5.^[211]

Devoting large sections to drawing practical guidelines as applied directly to politics, the Huangdi Sijing attempts to apply "concrete" politics to theorizing public policy. The work does not argue the origins of society, human nature, or their relations, but it does draw broad lessons from Chinese history. Characterizing humanity and politics as constantly shifting, it treats rulership as a practical art responding to shifting events and personalities. While reflecting on failures and successes, it does not consider their situations and solutions ever exactly repeatable. It offers guidance rather than aiming at "watertight techniques", which would be more akin to the aspirations of the "great progenitors of Rationalism", Descartes or Francis Bacon.^[212]

Advocating the practice of wu wei non-action mainly for rulers, the Han Feizi contrasts with later or more spiritual forms of Daoism as a practical state philosophy not accepting a 'permanent way of statecraft'.^[213] The Huang-Lao boshu developed a more metaphysical naturalist view, promoting a "predetermined natural order" for humanity.^[214] The Han Feizi only hints at such a view, affirming the Dao as "the standard of right and wrong".^[215] The Later Mohists and Han Fei moved away from an emphasis on heaven or nature,^[209] towards one of a man-made Sovereignty, a view affirmed by the Han Feizi's discussion of Shen Dao.^[216] Although Han Fei recalls Laozi, in this regard, Graham took them as moving in "parallel directions". Where Laozi sought to adapt to uncontrollable natural forces, the Han Feizi seeks the establishment of an "automatic" social order, with illustrations of scales, compasses and squares for "precise unimpugnable decisions."^[217]

Though not "completely endorsing" their methods, after "two millennia of narrating the past to harm the present, and adorning empty words to harm the substance," Hu Shih took Han Fei and Li Si as the "greatest statesmen in Chinese history", with a "brave spirit opposing those who 'do not make the present into their teacher but learn from the past'", and a political dictatorship less frightening than one adoring the past.^[218] 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:^[219]

You glorify Nature and meditate on her: Why not domesticate and regulate her? You follow Nature and sing her praise: Why not control her course and use it? ... Therefore, I say: To neglect man's effort and speculate about Nature, is to misunderstand the facts of the universe.

Stressing timeliness, Sima Tan's description of the 'Dao school' says: "It (the dao or way) shifts with the times and changes in response to things", a view earlier found in Han Fei and Xun Kuang. Hong Kong professor Liu Xiaogan takes the Zhuangzi and Laozi as more focused on "according with nature" than timeliness. Sima Tan's description better fits with what he called Huang-Lao, with followers theoretically defining the former according to the latter.^[220]

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.^[221] As a counterpoint, the Han Feizi and Shen Dao do still employ argumentative reference to 'sage kings'; the Han Feizi 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, considering the demarcation between public and private a "key element" in the "enlightened governance" of the purported former kings.^[222]

Works of Rule

Part of the Yellow Emperor's Four Classics from the discovered Silk Texts

Along with founding Han dynasty figures,^[223] Sima Qian claimed Shen Buhai, Han Fei and Shen Dao as "rooted" in Huang-Lao or "Yellow Emperor and Laozi (Daoism)".^[224] While the term might be retrospective, Sinologist Hansen (Stanford Encyclopedia) still took a Huang-Lao "Yellow Emperor Daoism" as theoretically dominant among the Chinese officialdom by the Qin dynasty, differentiating it as a "ruling fǎjiā ('Legalist') cult", noting the anachronism.^[102] Likely representing more of a tendency than a unified doctrine, named early Han "Huang-Lao" administrators, like Cao Shen, took a more "hands off" approach.^[225]

Although the Han Feizi can still be read through a Daoist lens,^[226] its writers likely did have a more Realist outlook.^[4] With their school distinctions not existing before the Han dynasty, the "political partisans" who included Daodejing commentaries in the Han Feizi probably did not see two separate schools; they probably saw works of rule.^[227][228] Sima Qian and Ban Gu describe Huang-Lao as works of rule.^[130]

The Han Feizi, Guanzi and Huangdi Sijing all have similar conceptions of principles and the Way as an art of rule, with the Han Feizi devoting three chapters to the subject.^[229] The Han Feizi more directly refers to a Way of the ruler, with likely older named "Huang-Lao" texts like Shen Dao and the Sijing still referring to a Way of Heaven.^[50][230] The Sijing has a more "naturalist" conception of the Way that might restrain the ruler,^[231][232] while Shen Buhai and Shen Dao were also more naturalist.^[233][234] The Han Feizi and Later Mohists were moving away from the earlier naturalism of Shen Dao,^[216][209] and Laozi.^[217]

While it remains a question how much such content might have been extant in Shen Buhai's time,^[235] the Sijing's Jingfa and Guanzi regard fa administrative standards as generated by the Dao, theoretically placing it, and some of those the Confucians later called Legalists, within a "loosely Daoist" context focused on rule.^[236] The Han Feizi's Laozi commentaries would theoretically precede the Xunzi,^[237] but could be late additions to the work itself, isolated to a few chapters. But the Han Feizi does still make a "sustained effort" to integrate Daoistic content, theoretically indicating the kind of syncretism that was becoming dominant by the late Warring States to Qin dynasty.^[238] While the Han Feizi is not the most effective example of Daoistic sycnretism, translator W.K. Liao considered the Han Feizi's "Commentaries on Lao Tzŭ's Teachings" academically thorough.^[239]

Some scholars argued a post-Han Fei dating for the Mawangdui Silk Texts,^[240] and can be argued to have been compiled in the early Han, when they would have still been appealing, but almost all scholars placed them Pre-han.^[241] Michael Loewe placed its Jingfa text before Qin unification. The Yellow Emperor is a major figure in one of its texts. Amongst other strains of thought, the more metaphysical, but still politically oriented Boshu text has arguments more comparable to natural law, but includes contents baring resemblance to Shen Buhai, Shen Dao and Han Fei, with some identical to Shen Dao.^[88]

Taking Shen Dao as an early theoretical representative of what would later be termed "Daoism",^[242] Hansen interpreted those works later termed legalist as works of rule.^[243] Shen Dao has administrative ideas, but a follower of his theory of positional power has authority because they have power or charisma; not because they are an expert at legal language.^[244] The Han Feizi presents administrative technique (shu) and fa (standards) to the ruler as tools for governing the state, with the administrative technique of Shen Buhai especially a tool in the ruler's hands.

Though not characterized as Huang-Lao, and only more focused on regulating ministers later in the work, the Han Feizi credits Shang Yang with developing standards as a general way of rule; not just criminal law. Its standards regulate ministers amongst other desired programs, most prominently including mobilizations for agriculture and war.^[245][4] Despite a more general orientation aimed at enhancing state power, Duke Xiao had likely called for ministers like Shang Yang partly to stengthen his own personal rule against that of "unruly aristocrats" of the 'Qin ruling lineage', aiming to expand the elite by employing men of service at their expense.^[246]

Laozi

Ink on silk manuscript of the Tao Te Ching – from Mawangdui (2nd century BCE)

More political than a typical reading of the Daodejing, rather than "using" the work for politics, the Han Feizi's authors may be reading from an older, more political version. An interpretation of the Daodejing as simply cynically political would be flawed. Still, together with qigong, it can be viewed as a manual for politics and military strategy. In contrast to its modern representation, the Mawangdui, and two of the three earlier Guodian Chu Slips, swap the two halves of the text, placing political commentaries, or "ruling the state", first. Although not necessarily its sole "original" version, the Han Feizi's political contemporaries likely read them in the same order.

Arguably lacking in metaphysics, associated content instead possesses mythologies. Nonetheless, in contrast to all prior Ways, the Daodejing emphasizes quietude and lack as wu wei. A central concept of Daoism, together especially with the early Tao te Ching, Shen Buhai, Han Fei, Zhuangzi, and so-called Huang-Lao Daoism all have wu wei as a governmental function, emphasizing the political usages and advantages of 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.^[247] If the authors of the Han Feizi were not all sincere in their Laoist beliefs, the work would still have served as a suitable critique of Confucianism and Mohism,^[248] and for impartial laws and techniques as purportedly bolstering the authority of a less active (wu wei) ruler.^[249]

The Daodejing regards the Way as nameless, but regards the establishment "names" like titles as inevitable with the establishment of regulations, advising that they not be carried too far.^[250] Cautioning against implementing too many laws, the Laozi has an idea which says that "Man models himself on Earth, Earth models itself on Heaven, Heaven models itself on the Way, and the Way models on what is so by itself", which may still have contributed to an idea that laws should follow an impartial Way (of Heaven), with the way "generating" laws.^[251]

While not a direct example of Xing-Ming, the more general idea of a less active (wu wei) ruler can be compared with the Daodejing's passage 17. J. J. L. Duyvendak interpreted ihe passage as valuing people's words,^[252] "arousing wide interest" but which Creel took as "quite old in Chinese literature" as that of a form of Daoism "leaning heavily toward Legalism". Creel takes the Wenzi as example, which draws on the Daodejing, Han Feizi and Huainanzi. The Laozi's 'enigmatic' passage does not directly mention rulers, but would seem to discuss the ruler as one who "does everything without acting".^[253][254] In the Guodian and Mawangdui versions, the passage is combined with passage 18.^[255]

In highest (antiquity) one did not even know there were rulers (or merely knew there were rulers)...
If good faith (of the prince towards the people) is inadequate, good faith (of the people towards the ruler) will be wanting.
Thoughtful were (the sage rulers), valuing their words!
When the work was done and things ran smoothly, the people all said: "We have done it ourselves!"....
When the great Way declines, there is "humanity and justice".
When state and dynasty are plunged in disorder, there are "loyal ministers".(Duyvendak 17-18)^[256]

Rather than words, some translators like John Ching Hsiung Wu have a more general translation of valuing people's faith, in line with the prior sentence.^[257] Shen Dao's "Understanding Loyalty" includes a "concern that a focus on loyalty arises only when things have already begun to go wrong."^[258] While placing some value in public opinion, the Book of Lord Shang instead believed that people should trust the ruler's rewards and punishments. The Han Feizi opposes trusting ministers.^[259] More in line with Confucianism and others parts of the Laozi,^[260] trust was an important Daoistic (Huang-Lao) value in the early Han dynasty going into the era of Confucianism, in the time of Gongsun Hong.^[261]

The Han Feizi's late Daodejing commentaries are comparable with the Daoism of the Guanzi Neiye,^[262] and with its "Seven Standards" chapter, connecting the Way with patterns and principles.^[263] It uses the Laozi more as a theme for methods of rule. Although the Han Feizi has Daoistic conceptions of objective viewpoints ("mystical states"), if its sources had them, it lacks a conclusive belief in universal moralities or natural laws,^[264] sharing with Shang Yang and Shen Dao a view of man as self-interested.^[265] 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 the Han Feizi's Xing-ming administrative method.^[266]

Although these early Daoist association do not include Shang Yang, the Shang Yangian figure Sang Hongyang in the Han dynasty does also quote Laozi. Chao Cuo may have been similarly influenced. But this would have been more part of a broader cultural context.^[267] Many Confucian scholars were also influenced by the Daodejing.^[268]

Xing-Ming

See also: Huangdi sijing

Often recalled under it following the Han Feizi, Sima Qian (c. 145–c. 86 BCE) lists Shen Buhai, Han Fei and Shang Yang under the doctrine of Xing-Ming, or "form" and "name". Sima Qian attests Shen Buhai and Han Fei as favoring it, but rooted in Huang-Lao or "Yellow Emperor Daoism". Listing them under the Fa school, Liu Xiang (77–6B CE) still considered Shen Buhai's doctrine to be that of Xing-Ming, described as holding outcomes accountable to claims.^[269][270] Though later combined with Shang Yang, Han Fei names Shen Buhai as progenitor for his doctrine of Xing-Ming.^[271]

The term Xing is an example of a model or standard (fa),^[272] prominently dating back to Zhou texts taking King Wen of Zhou as a model.^[273] It still referred to models when Zichan used the term in his penal reforms.^[251] However, the Han Feizi states than Shen Buhai actually uses the earlier, more common philosophical equivalent, the Mohist "ming-shi", or name and reality,^[274] so that it likely originates in the name and reality debates of the Later Mohists (or "Neo-Mohists") and school of names (Xingmingjia).^[275] Before this, it likely goes back to the Confucian rectification of names, or cheng ming, a term Shen Buhai's fragments still used even if the later Han Feizi contrasts with it.^[276]

Liu Xiang (Pei Yin) recounts Shen Buhai's book as advocating Method rather than punishment.^[277] An early bureaucratic pioneer, Shen Buhai was not so much more advanced as he was more focused on bureaucracy. Though not its only example, the Han Feizi's discussion of Method (Technique, fa-shu) in Chapter 43 provides a basic explanation for Shu, saying: "Method is to confer office in accordance with a candidate's capabilities; to hold achievement (Xing forms) accountable to claim (Ming names); and to examine the ability of the assembled ministers."^[278] Though having a meritocratic goal,^[279] and at least potentially filtering ministers meritocratically, as presented by Han Fei Shu's central principle may have been Xing-Ming as accountability "more than anything else".^[278]

The Han Feizi's Xing-Ming method was likely the most 'mechanically' complex example of its kind for the period. Xun Kuang often has more specific criteria for the appointment of officials, but the Han Feizi's methods are "quite detailed." In this regard, the late Warring States theories of Xun Kuang and the Mohists were still far more generalized.^[280] Compared with Shen Buhai and the earlier Confucians, accountability is much more developed in the Han Feizi at the end of the Warring States period. Holding ministers accountable for their proposals, actions and performance, the Han Feizi ultimately names individual ministers to roles (e.g. "Steward of Cloaks" Chapter 7), forming into explicit roles to be performed by the ministers.^[281]

While Shen Buhai's has ideas corresponding more with matching proposals with duties, the late Guanzi has an example which A.C. Graham took as becoming closer to Han Fei's doctrine, ultimately matching office titles and duties.^[87]

Scrutinizing names. Scrutinize the object according to the name, fix the name depending on the object. Name and object give birth to each other, and reversing become each other's ch'ing ("the essential without which the object will not fit the name"). If name and object fit there is order, if not, disorder... Graham, Guanzi Ch55

With their doctrines scarcely visible in the early Han outside the Mawangdui silk texts, according to the Shiji, the practice 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.^[282] With an early meaning of form, model or regulation, and fewer words in the Warring States period, the meaning of Xing (刑) is gradually lost as punishment.^[283] Before Han Fei, the popular Xun Kuang already uses Xing-Ming as "the names of punishments" in his introduction, the only extant Warring States work to do so.^[284]

By the later Han, scholars less knowledgeable than Liu Xiang were not always aware that Shen Buhai and Shang Yang differed.^[36] Early connected with Shen Buhai and school of names type figures as Method, Xing-Ming is sometimes used to refer to a combination of Shang Yang and Han Fei by the Han dynasty. Despite a potential contribution of its meritocratic ideas to the founding of the Imperial Examination, the meaning of Xing would ultimately be confused and lost in conflation with punishment (Xing 刑) by the time of the Western Qin, sometimes as early as the third century's Eastern Han. Likely unable to interpret the term, they become "the school of punishments" after the fall of the Han dynasty. Jin Zhuo would take it as a combination, and split it, assigning the Xingmingjia School of Forms and Names as the Mingjia School of Names, and those already classified as Fajia legalists as the Xingjia or school of punishments.^[285]

Xing-Ming and Daojia

While the Han Feizi includes ideas of law, Laozi's fa is usually translated as still referring to general standards or models.^[286] Laozi and Zhuangzi generally lacked and even opposed law because they did not regard words and names as "sufficient to express the Way",^[287] Laozi saying that "the name that can be named is not the constant name." However, A.C. Graham sees this as meaning not that words are useless, but only that they are imperfect descriptors. The work balances inadequacies using opposites.^[288]

Make freedom from desire your constant norm; thereby you will see what is subtle (妙)^[289]
Constantly with desire, thereby observe the boundaries^[290] (徼 jiao literally "border", "outer fringe" James Legge.) (Laozi 1)

The Han Feizi's commentaries on Laozi are a critique.^[291] For Han Fei, "names" refer to things like ministerial proposals,^[292] or "titles", so that Shen Buhai's concept of "names" can critique Laozi, at least for the Han Feizi's purposes.^[293] The Han Feizi's chapter 5 Zhudao (道主) or "Way of the Ruler" follows up Laozi, recalling Shen Buhai in parallel style with an idea of names "rectifying themselves".^[151] Pairing (Ming) "names" or proposals with (Xing) "forms" or results, results serve as a standard (fa) of comparison for claims, forming bureaucratic functions of opposing processes.^[292] Though not included amongst Sima Qian's short list of chapters, he may have considered Han Fei to be "rooted" in Huang-Lao based on Chapter 5's conception of the Way, including ideas of the Way as a standard and hints of metaphysics.^[149]

Dao is the beginning of the myriad things, the standard of right and wrong. That being so, the intelligent ruler, by holding to the beginning, knows the source of everything, and, by keeping to the standard, knows the origin of good and evil. By virtue of resting empty and reposed, he waits for the course of nature to enforce itself so that all names will be defined of themselves and all affairs will be settled of themselves. Empty, he knows the essence of fullness: reposed, he becomes the corrector of motion. Who utters a word creates himself a name; who has an affair creates himself a form. Compare forms and names (Xing-Ming) and see if they are identical. Then the ruler will find nothing to worry about as everything is reduced to its reality. Ch5. W. K. Liao.

Though the Han Feizi's chapters five or eight are not as academic as later commentaries in trying to illustrate the Daodejing's actual meaning, using Laozi for its own purposes is similar to other early commentaries like the Xiang'er.^[293] Compared with Laozi, the Han Feizi's "Way of the Ruler" has much less ambiguous language,^[294] promoting "the ruler's quiescence",^[295] "practical recommendations" and the management of ministers rather than a Daoist way of life or metaphysics. But it "affirms the primacy of the dao", recalling a passage from Laozi with the Way as the origin of the world. It follows recalling Shen Buhai, whose ruler followed the 'natural order' or Way (Dao), responding rather than acting himself, or wu wei.^[296]

In "strictly practical" terms,^[297] Shen Buhai, Shen Dao or Han Fei might loosely be thought of as originating in a Daoistic 'way in thought'^[298] in the sense of governmental models (or standards, fa) "derived from Dao",^[236] which Han Fei ultimately supplants with law.^[299] Laozi, Zhuangzi, Shen Buhai or Sima Qian did not generally advocate laws (fa),^[300] but the recovered Mawangdui Silk Texts Huangdi Sijing did emphasizes standards (fa) as including law.^[301] As the first sentence of the work,^[302] its Jingfa text regards the Dao as generating standards,^[236] with arguments more comparable to natural law.^[88] "Huang-Lao" would theoretically differ in still seeking more to conform law with the Way.^[299]

Shen Buhai, Han Fei, and Sima Tan' preferably 'inactive' ruler contracts an assembly of ministers, correlating Ming ("names", or verbal claims) such as job proposals with the Xing "forms", "shapes" or results that they take. With early examples in Shen Buhai (Shenzi), several of the Mawangdui silk texts bear resemblance to Han Fei's Chapter 5 discussion of Xing-Ming and its "brilliant (or intelligent) ruler", as do other eclectic Huang-Lao typified works, like the Guanzi, Huainanzi, and Sima Qian's Shiji.^[303]

[The sage ruler] does not like or dislike things because they are beautiful or ugly, nor is he pleased or angered by punishments and rewards. He lets each name name itself and each category categorize itself. Affairs proceed from what is so of themselves with no interference from him personally. Huainanzi

Legalists or administrators?

Although the term Legalism has still seen some conventional use in recent years, such as in Adventures in Chinese Realism, apart from its anachronism academia has avoided it for reasons dating back to Sinologist Herrlee G. Creel's 1961 Legalists or Administrators?. As the Han Feizi presents, Shang Yang mainly uses fa as meaning law, while Shen Buhai uses fa (standards) in the administration, which Han Fei translated as Shu technique, and Creel as fa method.^[304][305]

The use of fa (standards) in the administration does not imply punishment.^[188] Han Fei and Shen Dao make some use of fa (standards) as akin to law, and some use of reward and punishment, but often 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:^[154]

An enlightened ruler employs fa (standards) to pick his men; he does not select them himself. He employs fa (method) to weigh their merit; he does not fathom it himself. Thus, ability cannot be obscured nor failure prettified. If those who are [falsely] glorified cannot advance, and likewise those who are maligned cannot be set back, then there will be clear distinctions between lord and subject, and order will be easily [attained]. Thus, the ruler can only use fa.^[306]

From a modern viewpoint, Shen Buhai could be argued a Legalist inasmuch as he emphasizes "guiding rules".^[307] But that is a modern viewpoint. Han Fei probably does not see them as Legalist in the sense of law.^[308] Han Fei contrasts them with Shang Yang's fa as including law.^[309][310] Shen Buhai's "rules" (fa) are secret,^[311] internal bureaucratic operations in the hands of the ruler,^[307] or "hidden in the breast."^[309] They help him and his ruler interpret information,^[312] define qualifications and duties,^[307] and make it more difficult for ministers to lie.^[312] Termed (administrative) Technique (Shu) by Han Fei, Shu is defined as examining the abilities of ministers, appointing candidates in accordance with their capabilities, and holding ministerial achievements (Xing "forms") accountable to their proposals (ming "names").^[313]

Herrlee Creel presented Shen Buhai as perhaps the "first systematic theorist" of "organizational and managerial science". But a hierarchical, merit based appointment of ministers to office does not make Shen Buhai a harsh Legalist in the sense of Shang Yang.^[314] Though Creel would object to the anachronism, it might loosely make him a "Daoist", as stated by Sima Qian, emphasizing a governmental dao (way) of internal standards in contrast to Laozi.^[236] Recalling Shen Buhai and Laozi in Chapter 5,^[315] Xing-Ming is one of the Han Feizi's central concepts, generally considered Shen Buhai's "most important administrative contribution".^[316]

The Han Feizi's chapter 5 introduction to Xing-Ming administration includes specific practical recommendations, and is not just theoretical.^[317] Correlating ministerial proposals (Ming "names") and achievements (Xing "forms") as contracts, Xing-Ming is amongst the Han Feizi's most philosophically sophisticated arguments. In connection with Chapter 7's The Two Handles, it can also be considered its most detailed application of reward and punishment, arguably making it the work's central practical theory. But Xing-Ming does not "presuppose a legal code", and does not require one. The Two Handles aims more at monopolizing reward and punishment to prevent usurpation.^[142][318] Although seeking more law, Han Fei comes from an environment of dangerous ministers seeking to reward and punish. Like Shen Buhai, this makes him more concerned with managing ministers than the people, and monopolization the key to power.^[244]

Shang Yang and Han Fei

The Book of Lord Shang contains some early ideas on ruling a state through laws and bureaucracy.^[319] It addresses statutes mainly from an administrative viewpoint, and many administrative questions, including an agricultural mobilization, collective responsibility, and statist meritocracy.^[320] After Shang Yang's execution following the death of Duke Xiao of Qin,^[321] the Qin kept his reforms but abandoned his harsh punishments.^[4] His followers sought broader ways to strengthen the state. Though still prioritizing agriculture and war as the standard for promotion, Chapter 25's Attention to Law promotes strict legal standards (fa) for ranking officials, partly to curb ministerial cliques.^[322] Translator Yuri Pines places the intricate legal system of its final chapter (26) in the late pre-imperial period, going into the Qin dynasty.^[40]

To the degree they abandoned Confucianism, their theories would have been comparatively new, leading to still incomplete theories in the Han Feizi.^[323] Often presenting its ideas in the context of the late Hann state that the work claims needs more law,^[324] inheriting Shang Yang's current, the Han Feizi aspires to a state with law, wealth and a powerful military at the end of the Warring States period. That the Han Feizi is not legislative suggests that component was still more theoretical,^[319] surpassing its predecessors more as an abstract conception of State not then yet implemented.^[323] Contrasted with attempts to know everything, the Han Feizi advocates for legal officials and clear rules as intended to simplify rule by standardizing it, allowing the ruler to follow after them using procedural technique (shu).^[97]

The work'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, 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.^[325]

School of names

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.^[326] 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.^[327]

But words and names are essential to administration,^[328] and discussion on the connection between realities and their names were common to all schools in the classical period (500-150 BCE), 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. With a narrower bureaucratic focus, Shen Buhai, Xun Kuang, Han Fei can still be compared with the early social, Confucian rectification of names.^[329]

Although more or less representing an actual social category of debaters,^[330] 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").^[331] Engaging in discussions of "sameness and difference", such distinctions would naturally be useful in litigation and administration.^[332] 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.^[333]

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,^[334] using fa comparative models for litigation.^[332] The Qin dynasty used comparative model manuals to guide penal legal procedure,^[335]

Qin & Han continuity

Lüshi Chunqiu, Qing dynasty, Hunan Museum

Along with the Confucian rectification of names, works associated with Shang Yang, Shen Buhai and Han Fei likely influenced the Qin dynasty. But a souring association of them with the Qin only developed over the course of the Han dynasty.^[336][337] While Liu Xin associates them with a harsh Legalism,^[338] Dong Zhongshu blames Shang Yang, Shen Buhai and Han Fei for a Qin policy influence of failing to punish criminals, arguing that this ultimately led to harsher penalties.^[339] Jia Yi earlier criticized Qin for insufficient humanity and righteousness,^[340] terms the Shiji's First Emperor describes himself in.^[341]

In the opinion of Yuri Pines (Stanford Encyclopedia), the Han Feizi abandons the idea that a "need for excessive reliance on coercion would end". If, in the sense of cruel punishment, the dark, final years of the Qin dynasty adopted such a posture, the period preceding and entering into the Qin dynasty does not. The Qin and final parts of the Book of Lord Shang continue to adhere to an older logic that punishment should culminate in an end to punishment, instituting measures against ministerial abuse in an attempt to accomplish it.^[342]

Whatever crisis transpired under the Second Emperor, a preceding era of cruel punishment under Qin dynasty rule is not there. The early Han continues and develops the institutions of the preceding Qin.^[343] With early excavated Qin legal practices mentioning foot or nose cutting three to four times, the period sees infrequent mutilating punishments, most commonly consisting of tattoos, dwindle towards their early Han abolition in 167 BCE under the fifth Emperor Wen of Han, shortly before Jia Yi's death.^[344] Their abolition is said to be inspired by Daoism and Confucianism;^[345] politically, they were abolished because ministerial interests would not tolerate being subject to them.^[346]

Said to be influenced by Daoism and Confucianism, Jia Yi wrote The Faults of Qin, opposing harsh penal law in favor of wu wei reduced activity by the ruler. Said by Sima Qian to have studied Shang Yang and Shen Buhai, he would be inaccurately classed as Legalist himself.^[347] Bargaining with Han Feizi loyalists and hardliners seeking to abolish the legal code, he sought a compromise abolishing the physical punishment of ministers,^[346] not unlike Shen Buhai.^[277] He has more Zhuangzi influences,^[348][349] and was a major Confucian commentator.^[340] But he could be termed Daoist or (inaccurately) Legalist, including Shen Dao influences.^[350]

Justice and Clemency

At least for its own interests, the Qin sought to protect the people against powerful ministers, punishing ministers with the penalty of whatever statute abused. Rather than the people, the Qin (as a policy) executes high ranking legal officials that alter the records.^[351] The only guaranteed brutal execution for the people that seems to stand out is for sedition with an enemy and the taboos of temple desecration or sibling incest.^[352]

As compared with Shang Yang's time, recovered Qin dynasty law does not emphasize group responsibility, directing mutilating group punishment against more extreme cases of group robbery by policing officials themselves, not petty individual theft committed by common people. As the period drew to a close, the aristocratic classes still did not specifically care about mutilating commoners for petty crimes, and the Han Feizi still not primarily concerned with directing punishments at them.^[353]

Once, Liu Bang released some prisoners he was escorting to Mount Li to be labourers, and became a fugitive. He hid in an outlaw stronghold on Mount Mangdang (in present-day Yongcheng, Henan) and maintained secret contact with Xiao He and Cao Shen.

While the Han dynasty develops towards "making the punishment fit the crime", Qin policeman Liu Bang inherits and continues most of Qin law.^[354] Cao Shen at most takes a more "hands off" approach after the Qin's fall.^[225] If Li Si was a villain, his student, the early Han governor Wu, a patron of Jia Yi, was already known for good government without severity according to the Hanshu.^[355] Said to have studied Shen Buhai and Shang Yang, mutilating and capital punishments already become rare under Emperor Wen before he abolishes them. "'Fond of reading' Shen Buhai", the Hanshu considered Emperor Xuan of Han a "model of justice and clemency".^[356]

Rather than contrasting Han with Qin, the simplest explanation for the clemency of early Han legal practice is that the Han continues to develop out of a preceding period shrouded in mythologies of harsh punishment.^[343] Most commonly sentencing or pardoning the people into fines or labor like canal digging,^[357] and insisting on clear protocols and forensics, it is "impossible" to deny the 'basic' justice of Qin law towards the people.^[358]

Leaning Daoistic,^[359] the ministers recruited to compose the late Qin state's Lushi Chunqiu place a high premium on learning,^[360] trying to convince the ruler of his superiority, provided he follows along and lets his learned officials do all the work.^[175] Despite considering them dangerous, the military regime impartially tolerates their various ideologies, incorporating them in the Qin encyclopedia.^[361] If there was a book burning, Sima Qian's Li Si doesn't seem driven by ideology like modern totalitarian regimes. If Han Fei influenced Qin, he ultimately still needs ministers with ideas, leaving it to the king to ban or encourage the public teaching of doctrines, but scholars to their studies if they enter government,^[362] rather than ban their ideologies from the government, as under Emperor Wu's Confucian Han.^[363]

Abolition of punishment

In contrast to Shang Yang and Han Fei, Shen Buhai or Shen Dao do not advocate harsh punishment.^[364] Han emperors used Shen Buhai's administrative ideas in cases, but no Han or earlier text individually link him with penal law—only with bureaucracy. The Huainanzi, Yantielun and Hanshu only gloss him as a penal figure alongside Shang Yang and Han Fei.^[365] A categorical criticism of them all as strict and with little kindness only evidentially develops after Sima Tan formed that criticism of fa laws and methods.^[34]

The term "Buhai" (不害) literally means "does not harm", a component of the Daodejing they were traditionally associated with. It is later a translation for Ahimsa. Practicing wu wei ("Doing nothing"), Shen Dao's ruler tries to commit no harm personally, using fa standards to impartially determine rewards and punishments.^[366] Liu Xiang (Pei Yin commentaries) considered Shen Buhai strict, but recalls him as recommending that the ruler "grasp (administrative) technique (shu)" to "do away" with the punishment of subordinates, relying on supervision and accountability.^[277] The Han Feizi's Chapter 5 recalls him alongside Laozi,^[151] linking officials titles and performance with rewards and punishments more in Chapter 7's the Two Handles ("Er bing" 二柄).^[70]

Amongst broader arguments, Jia Yi blames the doctrine of Shang Yang for the faults of Qin.^[367] Like the Confucians, Sima Qian characterizes Shang Yang, Han Fei, Li Si and Chao Cuo harshly,^[368] with the Book of Lord Shang's early chapters of 3,4 & 11 criticizing such "fundamental moral norms" as "benevolence, righteousness, filiality, fraternal duty, trustworthiness, and honesty."^[119] A couple chapters of the Han Feizi "eschew grace and benevolence"(35,47),^[369] and the work does recommend execution for the violation of offices, as does King Wu of Zhou in the Book of Documents.^[370] Warning the ruler against coups, despite its cynicism and severity, the works upholds loyalty and filial piety, expecting that a reliable law will allow relations with ministers as human beings.^[371][372]

The Han Feizi's chapter 7 The Two Handles insists that ministers must never be allowed to reward and punish on their own authority.^[38]

The ruler uses punishments and rewards to control his ministers, but if the lord relinquished his punishments and rewards, and allowed his ministers to apply them, the lord would be controlled by the ministers

While Shang Yang advocated heavy punishment, even the Book of Lord Shang insists that "Clarifying punishments [should mean] no executions".^[4] The Qin dynasty punishes non-violent petty individual theft committed by commoners with a month labor service, not mutilation. It heavily punishes robbery committed by groups of five or more police. It skips mutilation (nose cutting) altogether if a group of four police steal less than 659 cash, punishing with heavy labor.^[373] After Shang Yang's execution, the Qin had retained his reforms, but abandoned his anti-Confucianism and harsh penal policy, before the founding of the Qin dynasty.^[374] King Huiwen of Qin's reign retained the death penalty for murder, but could be pardoned, adopting a more lenient, Confucianistic ethos in handling cases.^[375]

Chao Cuo's doctrine sells clemency to the peasantry, though his particular remains do not name crimes eligible for pardon. While it would be an exaggeration to suggest him a welfarist, it can be suggested that, in connection with his agrarian economic policy, the Han was developing a "proto-welfare" utilizing surplus grain - at minimum as tax reduction. Professed to have studied Shang Yang and Shen Buhai by the Shiji, though the Confucians characterize him as Legalist, by its own wording this policy mirrors Laozi's chapter 77. However, as not to overemphasize his "Daoism", Laozi's proverb was already common outside the Daodejing by the Warring States period, as an arguably more "universal cultural notion". Sang Hongyang later has similar ideas.^[376]

Eradicating punishments

In the period preceding unification, Qin laws diverged significantly from ideas espoused in Book of Lord Shang (Shangjunshu):^[377] while retaining Shang Yang's reforms, the Qin abandoned his anti-Confucianism and strict, harsh penal policy, and ultimately his heavy emphasis on agriculture. After Shang Yang, King Huiwen of Qin is attested as having pardoned the death penalty in a case involving murder, based on Confucian ethics.^[4][378] Sima Qian depicts Qin Shi Huang as emphasising law and order, praising himself as a "sage ruler of benevolence and righteousness ... who cares for and pities the common people".^[341] A major reform of the primarily administrative Qin dynasty focuses on restraining ministers, instituting office divisions that cannot punish at will.^[379][380]

Translator Yuri Pines takes the final chapter (26) of the Shangjunshu as reflecting the administrative practices of the late pre-imperial and Imperial Qin dynasty, aligning with knowledge of Qin governance.^[40] Although written as an interview with Shang Yang, its recommendations would have been too sophisticated for his time.^[381] The chapter proposes setting up offices of strictly trained legal experts at the central, provincial, and local levels, tasked with answering all questions posed by the people and officials. With the degrees of minor officials kept simpler, responses would be strictly controlled through double-entry registration, with one half given to the inquirer, and the other filed in sealed archives for retrieval. Cases would have to be judged in accordance with the previous responses.

Though intended more to promulgate the law and governance of the sovereign than safeguard the rights of citizens in a modern sense, it requires their cooperation. Protecting the people from ministerial abuse becomes more important than punishing them. Taken as universally beneficial, in an attempt to achieve the "blessed eradication of punishments through punishments", clear laws are taught that the people can use against ministers abusing the statutes. Punishing the ministers according to the penalties of the statute abused, archival corruption by the legal experts could be punishable up to the death penalty. Han Fei makes similar recommendations, but compared with the late part of the Shangjunshu he may not yet have developed the idea or concern of legal mechanisms for protecting people from the bureaucrats, he is more focused on accomplishing order through the administrative power of the ruler.^[382][383]

If, as depicted, at least part of the Han Feizi dates to the late Warring States 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 mistakenly be imposed backward. Een if the Shangjunshu only passingly suggests that a need for punishment would pass away, the Qin nonetheless abandoned Shang Yang's heavy punishments. 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:^[384]

Gongsun Yang said: "When [the state] implements punishments, inflicts heavy [punishments] on light [offenses]: then light [offenses] will not come, and heavy [crimes] will not arrive. This is called: 'eradicating punishments with punishments'.

Despite what might be assumed from associated texts, the Qin "were not extraordinarily severe for their time",^[39] and form a continuity with the early Han dynasty, abolishing mutilations in 167 BCE. In the heavy degrees of punishment, the Qin's mutilating punishments include tattooing, nose cutting, and foot cutting, but the latter two are only mentioned infrequently, decreasing over time. Heavy labor is most common. After sentence, mutilating punishments in the Qin and early Han were then commonly pardoned or redeemed in exchange for fines, labor or one to several aristocratic ranks, even up to the death penalty. Depending on severity and circumstances, sentencing may skip over mutilating punishment directly to a mutually preferential sentence of labor, thereafter potentially pardoning them into a period of borderlands military defense service.

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 at lower level heavy punishment, labor from one to five years becomes the common heavy punishment in early Imperial China, generally in building roads and canals, with only a minority going to build the Great Wall. As a component of general colonization, the most common heavier punishment becomes expulsion to the new colonies, with exile considered a heavy punishment. 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. Dong Zhongshu criticizes the Qin for failing to punish criminals, but exile itself as a heavy punishment in ancient China dates back to at least the Spring and Autumn period.^[385][386]

Han-era writer Dong Zhongshu (179–104 BCE) considered Qin officials and taxes severe, but did not characterise punishments as such; in fact, Dong criticized the Qin system for its inability to punish criminals.^[387] Aiming to reduce punishment to a minimum, the idea of redemption can be found in the Analects of Confucius, attempting to ensure a correct application of the rectification of names.^[388]

Han Feizi

For Han Fei, the power structure is unable to tolerate an autonomous ministerial practice of reward and punishment. Han Fei mainly targets ministerial infringements. The Han Feizi's main argument for punishment by standards, 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. Monopolization can be considered a core of Han Fei's practice of fa laws and methods, aiming to prevent usurpation.^[389]

Mostly concerned with the ministers, Han Fei does not regard the people as an enemy, as the earlier part of the Book of Lord Shang did.^[390] The Han Feizi occasionally even has ideas of public good. "Preventing the strong from exploiting the weak" will benefit the sage ruler Han Fei addresses, but also the elderly and the orphan. 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.^[391] For this reason, the Han Feizi also opposes corvée, with hardship turning the people toward powerful ministers to the detriment of the ruler and state.^[392]

Shen Dao, the first member of Han Fei's triad between the figures in the later chapters, never suggests kinds of punishments, as that was not the point. The point in Shen Dao's framework was that it would involve the ruler too much to decide them personally, exposing him to resentment. The ruler should decide punishments using fa standards.^[393] Han Fei 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 secondary to simply controlling ministers through techniques. Although these could be expected to include espionage in his time, they consisted primarily simply in written agreements.^[394]

Justice

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.^[4] 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.^[395][4]

Sima Qian argues the Qin dynasty, relying on rigorous laws, as nonetheless insufficiently rigorous for a completely consistent practice, suggesting them as not having always delivered justice as others understood it.^[396] 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.^[358][397]

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":^[398]

Those men who violated the laws, committed treason, and carried out major acts of evil always worked through some eminent and highly placed minister. And yet the laws and regulations are customarily designed to prevent evil among the humble and lowly people, and it is upon them alone that penalties and punishments fall. Hence, the common people lose hope and are left with no place to air their grievances. Meanwhile, the high ministers band together and work as one man to cloud the vision of the ruler.

Sources in Legalist mythos

Jia Yi criticized Shang Yang In the reign of Emperor Wen, but along with propriety and righteousness himself advocates fa laws (models), ranks and the execution of usurpers.^[367] Arguing for Daoism (Daojia) in the reign of Emperor Wu,^[399] Sima Qian depicted Li Si as reciting a distorted version of Chapter 43 to the Second Emperor.^[121] Contrary to earlier depictions, along with other Han dynasty authors, Sima Qian also depicts Confucius as a legalistic figure.^[400] Advocating law, punishment and meritocratic appointment, Dong Zhongshu simply associates Shang Yang, Shen Buhai and Han Fei with the Qin dynasty again.^[401]

Jia Yi (200–169 BCE)

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 among Sima Qian's own Huang-Lao typified allies, Sima Qian nonetheless 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, Jia Yi 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 characterized the work as a politically motivated mythos.^[402]

Liu An (179–122 BCE)

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.^[403] 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 (Confucian) 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. Although Chapter 1 is based most strongly on Laozi, the work otherwise most strongly resonates with the Zhuangzi, with influences from the Hanfeizi, Lüshi chunqiu, Mozi, and Guanzi, the Classic of Poetry, etc.^[404]

When the First Emperor of Qin conquered the world, he feared that he would not be able to defend it. Thus, he attacked the Rong border tribes, repaired the Great Wall, constructed passes and bridges, erected barricades and barriers, equipped himself with post stations and charioteers, and dispatched troops to guard the borders of his empire. When, however, the house of Liu Bang took possession of the world, it was as easy as turning a weight in the palm of your hand.

In ancient times, King Wu of Zhou vanquished tyrant Djou... (and then) distributed the grain in the Juqiao granary, disbursed the wealth in the Deer Pavilion, destroyed the war drums and drumsticks, unbent his bows and cut their strings. He moved out of his palace and lived exposed to the wilds to demonstrate that life would be peaceful and simple. He lay down his waist sword and took up the breast tablet to demonstrate that he was free of enmity. As a consequence, the entire world sang his praises and rejoiced in his rule, while the Lords of the Land came bearing gifts of silk and seeking audiences with him. [His dynasty endured] for thirty-four generations without interruption.

Therefore, the Laozi says: "Those good at shutting use no bolts, yet what they shut cannot be opened; those good at tying use no cords, yet what they tie cannot be unfastened." Chapter 12.47^[405]

The Fa School

Inasmuch as the term Legalism has been used modernly, Dingxin Zhao characterizes the Western Han as developing a Confucian-Legalist state.^[406]

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 141-87 BCE), 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 Wu was 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.^[407]

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 BCE) 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.^[408]

With Sima Qian's categories already popular by their time, Imperial Archivists Liu Xiang (77–6B CE) and Liu Xin (c. 46B CE–23 CE) placed Han Fei's figures. Liu Xin associates the schools with ancient departments, with the fa-school "probably originating in the department of prisons", whose descendants in Dong's essay, then, failed to punish criminals. Fajia becomes a category of texts in the Han state's own Book of Han (111ce), with Dong's argument included in his Chapter 56 Biography.^[409]

The fajia are strict and have little kindness, but their divisions between lord and subject, superior and inferior, cannot be improved upon… Fajia do not distinguish between kin and stranger, or differentiate between noble and base; all are judged as one by their fa. Thus, they sunder the kindnesses of treating one's kin as kin and honoring the honorable. It is a policy that could be practiced for a time, but not applied for long. But for honoring rulers and derogating subjects, and clarifying social divisions and offices so that no one is able to overstep them—none of the Hundred Schools could improve upon this.^[410] Shiji 120:3291

Legacy

Though often viewed as a relic of the past, Legalism has been cited by scholars and commentators as having ideological influence on the current governance of the People's Republic of China (PRC).^{[411][412][413]}