Legalism (Chinese philosophy)

Fajia (Chinese: 法家; pinyin: fǎjiā), or the School of fa (law, method), often translated Legalism,^[1][2] was a bibliographic school of primarily Warring States period classical Chinese philosophy, including 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 by Sima Qian to be rooted in Huang-Lao (Daoism).^[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 recalls the Han Feizi'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]

Confucian interpretive category

One of the early Han dynasty historian Sima Tan's (165–110 BCE) six schools of thought discussing approaches to governance in the last chapter of the Records of the Grand Historian,^[16] those the Confucian archivists grouped under the fa school (Fajia) in the Hanshu book catalogue probably never formed organized schools to the extent of the Confucians or Mohists.^[17] Before the Han Feizi, Shang Yang and Shen Buhai were relatively contemporary,^[18] but the school's figures were varyingly influential in different places and times, with no singular doctrine.^[19]

What the Confucians called the fa school groups texts seen as sharing a concern with fa from a Confucian perspective.^[20] In the Sui dynasty, even authors who appear to have considered themselves Confucian were included under the fa school, such as the Essentials for our Age attributed to Huan Fan.^[21] At the "center of classical discourse", fa is advocated as derived of Dao the way.^[22][23] While the Han Feizi is less naturalist at the end of the Warring States period,^[24] it adapts Dao from the Tao te Ching at least as a major argument.^[25] The more militarist Book of Lord Shang makes changing with the times arguments.^[26] Sima Qian does not see Shang Yang as a Daoist,^[27] but Sima Tan does see "changing with the times" as an argument about the Dao.^[28]

Fa or laws are not the exclusive domain of the school,^[14] and were not entirely separate from contemporaries.^[29] Contemporary to Shen Dao, Confucians like Mencius also considered fa necessary, at least in the sense of measurement,^[30][31] while Hui Shi also wrote a code of laws.^[32] Chancellor Shen Buhai was more focused on bureaucracy, but the method behind his administration was not more complex than his contemporaries, compared with Xun Kuang or the Han Feizi late in the period.^[33] While Shang Yang's may been more radical and successful, agriculture and conscription concerned most thinkers of the Warring States period, just with different solutions.^[34][35]

Though it is not as evident Shen Dao maintains Shang Yang or Shen Buhai's influence,^[36] he was more evidently broadly well known than them in the earlier period.^[37] Shen Dao is considered obsessed with fa by the Confucian Xun Kuang.^[38] Placing him before Laozi and Zhuang Zhou, the Zhuangzi does not associate Shen Dao with a literal Legalist school, and was probably not familiar with the idea.^[39] Considered a Huang-Lao Daoist in the Shiji,^[40] it sees him as one scholar among others at the Jixia Academy;^[41] Xun Kuang mentions him alongside the lesser known Tian Pian as honoring law.^[42]

The Han Feizi's combination

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

Propelling the Qin state to power in the early Warring States period,^[43] Shang Yang and the Book of Lord Shang had disciples, but neither he nor the Han state's Shen Buhai see the same level of interstate visibility as Shen Dao in the early period.^[44][45] Less draconian than Shang Yang, Creel believed Shen Buhai cultivated obscurity to preserve his safety.^[46] Ideas associated with them become more renowned in the late period in connection with their past reforms,^[47] and through the Han Feizi,^[48] as Shang Yang's first preserved reference outside the Book of Lord Shang.^[49][45]

While it is possible the concept of a school preceded Han Fei,^[50] the rare term Fajia likely only meant "law-abiding families" in Mencius's time, and later something like "methods expert in economic affairs" in the Guanzi.^[51] The Han Feizi's chapter 43 ("Ding fa" 定法) presents Shen Buhai and Shang Yang as two different schools (jia), with Shang Yang more focused on fa as including law, and Shen Buhai fa (administrative) method, differentiated as Shu technique.^[52][53] Shen Dao is discussed by the Han Feizi's chapter 40 for his views on shi power,^[54] depicting his doctrine as akin to a dragon floating on clouds.^[55]

The rare term Fajia likely only meant "law-abiding families" in Mencius's time, and later something like "methods expert in economic affairs" in the Guanzi.^[51] Dubbing Shang Yang's followers a school of fa law "Legalism", with law, ordinances, decrees, reward and punishment, the Han Feizi is the closest indication that anyone used the term fa school in the Warring States period, associating its figures together with him. A Han dynasty conception they belonged together develops out of its influence.^[56][57] Despite contrasting them with each-other and its own ideas,^[58] their combination likely stems from its combined discussion,^[59][60] contributing to their association,^[61] and a Shang Yangian Legalist interpretation of what the Confucians later called the Fa school,^[62] taking Shang Yang as exemplar.^[63]

Amongst broader arguments, Jia Yi only blamed the doctrine of Shang Yang for the faults of Qin.^[64] Shen Buhai is glossed together with Shang Yang and the Qin dynasty in the Salt and Iron Debates. Shen Buhai and then Han Fei are gradually combined with Shang Yang,^[65] and with the Qin dynasty.^[66] When the later Han dynasty Confucian scholars grouped together texts discussing philosophies of law and governance,^[67] they grouped the Han Feizi and its predecessors under a broader fa school (Fajia),^[68] likely based on the Han Feizi and its influence. The broader fa school becomes confused together with Shang Yang as akin to a Legalism.^[69]

Imperial Library category

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

Later Han scholars Liu Xiang (77–6 BCE) and Liu Xin (c. 46 BCE–23 CE) used Fajia or "fa school" 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,^[70][71] six other texts were listed under it, now lost,^[72] including Li Kui and Han minister Chao Cuo (Hanshu CH1), leaving four unidentifiable works.^[14] The Hanshu's Journal of Literature Ch30 considered Li Kui the first of broader works on regulations, influencing Shang Yang.^[73][74]

Theoretically developing from Shang Yang and Shen Buhai's pairing in the Han Feizi, Fajia and Legalism would arguably represent two different, successive categories, confused together as Legalism.^[75]

• Sima Ta 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.^[76] 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.^[77] They were not however all considered strict until they were associated with Tan's fa school.^[78] Han Fei advocates well defined, mechanically strict administration at the end of the Warring States period. His level of strict mechanical functioning isn't evident earlier, including by his predecesor Shen Buhai. It is Han dynasty level conceptual thinking.^[79]

• Included in the Book of Han by Ban Gu, Liu Xin adds that Fajia likely had their origins in an ancient Zhou Dynasty department of prisons (or justice, Feng Youlan) "make reward certain and punishment unavoidable, as a support to control by (Confucian) ceremony", reject 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.^[80]

Law as supporting control by ceremony is an example of Confucian perspective.^[81] However, despite some anti-Confucianism in the early Book of Lord Shang and Han Feizi, this is not entirely inaccurate. Because fa penal law supplemented ritual norm in practice, modern Chinese scholarship did not regarded them as having been entirely separate.^[82][83] The late Warring States Guanzi text sees law as originating in ritual norm and practice.^[84] While the Book of Lord Shang is rarely utopian, it admits peace could bring a return to morality.^[85]

Managing to defend the Hann state, the "Daoist" Shiji regarded Shen Buhai as implementing the Way,^[86] second to Laozi and Zhaungzi.^[87] Herrlee G. Creel emphatically insisted that Shen Buhai is not a Legalist. Contrasting him with Shang Yang, the Han Feizi likely understates Shen Buhai, but was not, from its perspective, as effective a legal reformer, neither consolidating the laws, nor unifying the regulations and ordinances. However, ancient Confucian bibliographic classifications arguably "do not pretend" to be uniformly precise, or "imply strict separation."^[88][89]

Commentary

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 institutions.^[90] With Confucianism not dominant until about 100 B.C.,^[91] Sima Qian saw Shen Buhai, Shen Dao, and Han Fei through what the Shiji called an early Huang-Lao "Daoist" context,^[92] with comparable currents theoretically influential among Chinese officials outside stratocracy dating back to at least the late Warring States period.^[93][94]

With the ascendence of Confucianism, what Sima Tan termed the Dao school (Daojia "Daoism") is defined 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." Though not the same as typical Daoism, the division into schools most notably sorts texts that could be related with a concept of syncretic political "Daoism" in the Shiji.^[95][23]

Sima Tan's fa school "Fajia" can only be seen to have been invented in a closing argument for political "Daoism" in the Shiji. There were no figures attached to it. A flawed category, along with the other schools, it contrasts with what Tan called Daoism. Later used in references to figures like Shang Yang and Han Fei, it did not necessarily refer to them in the Shiji. Liu Xin projects it backwards into the Warring States period as a school descending from a Zhou court office of prisons. Feng Youlan's early scholarship considered this a legitimate attempt at history, but not an accurate one.^[96]

Like the Confucians, Sima Qian characterizes Shang Yang, Han Fei, Li Si and Chao Cuo harshly,^[97] 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."^[98] A couple chapters of the Han Feizi "eschew grace and benevolence"(35,47),^[99] and the work does recommend execution for the violation of offices, as does King Wu of Zhou in the Book of Documents.^[100] Warning the ruler against coups, despite its cynicism and severity, the Han Feizi upholds loyalty and filial piety, expecting that a reliable law will allow relations with ministers as human beings.^[101][102]

Late theory

For the preceding Warring States period, a view of history with a Legalism school based on the Han Feizi would not necessarily produce an accurate view .^[103] A confused reading of the Han Feizi historically gives Shang Yang an appearance of leading a Legalist fa school paired with Shen Buhai.^[104] But the Hanshu considers Li Kui the first of them.^[73][105] At least in the sense of meritocratic governance, Shen Buhai would more likely have been familiar with earlier reformers than Shang Yang, like Zichan, Li Kui, or Chu state reformers;^[106][107] the Han Feizi recalls Chu state reformer Wu Qi.^[108] With Zichan a significantly influential figure, the Huangdi Sijing is also relatable with Guan Zhong and Zichan associated ideas.^[109]

As chancellors of neighboring states,^[110] Shen Buhai and Shang Yang's doctrines would have intersected before imperial unification, and the Han Feizi is Shang Yang's first preserved external reference. The Han Feizi would suggest that works, laws and methods associated with Shang Yang and Guan Zhong may gone into broad circulation at that late time.^[111] The Book of Lord Shang's final chapter suggests the late pre-imperial Qin may have already established a more complex legal system than Shang Yang, consistent with the Qin dynasty. But it would only just have been implemented.^[112]

Only having recently encountered Shang Yang's current, there was no shared practical Shang Yangian legislative Legalist school between them in Han Fei's own time. Inasmuch as they abandoned Confucianism, their theories would have been relatively new, remaining incomplete in the Han Feizi. Aspiring to a state with more law, wealth, and military power at the end of the Warring States period, the Han Feizi surpasses its predecessors as an abstract idea of State.^[113] The Han Feizi advocates legal officials and clear rules more as intended to simplify rule by standardizing it. Contrasted with attempts to know everything, they allow the ruler to follow after affairs using standardized procedural technique (shu) adapted from Shen Buhai.^[114] Pulling on a concept from Shen Dao, it considers shi power necessary before legal reform could actually be carried out.^[115]

While the late Qin's Lushi Chunqiu encyclopedia is familiar with Shen Buhai,^[116] the Qin dynasty diverged significantly from earlier ideas. A late Han notion of them as following Legalists would be an oversimplification,^[117] based on a reading of the Hanshu's book catalogue and Dong Zhongshu biography (ch56).^[118] Early parts of the Book of Lord Shang express anti-Confucianistic sentiments, but to an extent, the Qin went on to be influenced by shared similar values.^[119] Militarism was a major viewpoint of the Qin, but was not included in the older list of schools, because Sima Tan did not consider it a useful point of comparison.^[120]

Legalists or administrators?

Taking Shang Yang as example, Joseph Needham (1954) used the term Legalism in reference to a positive law interpretation of fa, specifying such things as regulations for roads.^[121] Although the term has still seen some conventional use in recent years, such as in Adventures in Chinese Realism, apart from its anachronism, scholarship has avoided it for reasons dating back to Herrlee G. Creel's 1961 Legalists or Administrators?. The Han Feizi presented Shang Yang as focused primarily on fa standards as including law, and Shen Buhai fa (standards) in the administration, differentiating it as (administrative) technique (shu). Creel translated it as fa method,^[122][123] presenting Shen Buhai as perhaps the "first systematic theorist of organizational and managerial science", with a hierarchical, merit based appointment of ministers, and arguable historical followers opposing harsh penal law.^[124]

Generally, the use of fa (standards) in the administration does not automatically imply punishment.^[125] Han Fei and Shen Dao make some use of fa (standards) akin to law, and some use of reward and punishment, but often use fa similarly to Shen Buhai: as an administrative technique. Shen Buhai uses fa (standards) to compare official's duties and performances, and the Han Feizi often emphasizes fa in this sense. With a particular quotation from the Han Feizi as example:^[126]

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.^[127]

From a modern viewpoint, Shen Buhai could be argued a Legalist inasmuch as his ruler follows guidelines.^[124] Internally, Han Fei could consider this a victory for fa method.^[128] He probably did not it as literal Legalism.^[129] Externally, he contrasts Shen Buhai and shu technique with Shang Yang's fa as including law,^[130] and with law as clear and public.^[131]

Apart from contracts, the guidelines Shen Buhai's ruler consulted (fa) were secret,^[132] internal bureaucratic operations,^[133] protecting him against the ministers.^[134] They help Shen Buhai and his ruler interpret information,^[135] define qualifications and duties,^[136] and make it more difficult for ministers to lie.^[135] In its own time, the Han Feizi advocates an advancement in technical (shu) procedures for ministers to follow as well, but these would go alongside law to the legal officials it was advocating in any case.^[114] 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.^[137]

The Han Feizi'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.^[138]

Exemplifying technique

Taking Shang Yang and Shen Buhai as representative, the Han Feizi considered law and method equally important. It sees Shang Yang as lacking in technique by comparison, and Shen Buhai in fa as including law. Despite differentiating them, it sees law and method both as techniques (shu) of government, or "tools of kings and emperors" for governing the state. It sees law as exemplifying technique, and Shang Yang's fa as a technique of rule.^[139][114] While Shen Buhai appears to lack the Han Feizi's later concept of shu technique, he has a concept of shu 數 enumeration which Creel saw as evolving towards technique.^[140]

Though going back to at least the early Zhou, enumeration is was rarely discussed as an administrative technique within the preserved older texts. But it does appear in the Book of Lord Shang,^[141] even if not as commonly as the Han Feizi. Fa in the Book of Lord Shang is not commonly paired with methods, techniques, gauges or measures. Its main focus, however, is on uniform standards for promotion, demotion, and the granting of ranks and offices.^[142] Regulations promoting by calculation, especially of military achievement, is an example of Shang Yang's fa as measurement becoming codified.^[143] Han Fei differentiates fa more, lending an increased view of conceptual poverty to his predecessors, with Shang Yang as simply a Legalist with laws, punishments and rewards.^[144]

Until later, Qin didn't have the technical ability to accomplish Shang Yang's goal of measuring agricultural merit to promote responsible persons. But they do still have the goal of codifying clear measurement criteria for promotion.^[145] While Yuri Pines primarily translates the Book of Lord Shang's fa as law, his translation reads:^[142]

“He who excels at ruling the state, his methods of appointing officials are clear” 善為國者，官法明

Creel sees fa models and method as evolving towards technique, rules, regulations and finally law, representing an expansion rather than a shift in the gradation and range of comparative measurement standards.^[146] Han Fei's subsequent lens of technique is argued against in scholarship as an anachronism,^[140] but doesn't necessarily represent a change in definition that is always less accurate than Legalism. It can be argued that Han Fei was not wrong to view Shang Yang’s fa as a kind of “technique”, with measurement-like standards for interpreting codes.^[147] A core of the Book of Lord Shang's theory is defining law correctly.^[148]

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^[149]

Han Fei considers clarifying rules and measures a technique.^[114] Using comparative standards as a technique to guide penal law would better serve Shang Yang’s goal of reducing wrongful punishment than only relying on standards as law.^[147] The Qin dynasty does not only have legal standards, it uses comparative model manuals to guide penal legal procedure.^[150]

Fa as comparative measurement standards is illustrated by the Mohists with gauges, squares, and plumb-lines, applied to craft and language like law. Though Shang Yang's reforms were radical, those the Confucians called Legalists are not different simply by using fa, as a major Mohist concept.^[146] Their use of impartial standards differs for instance in emphasizing them over the ruler's personal wisdom, where the Huangdi Sijing still emphasized wisdom.^[151][152]

The ears, eyes, mind, and wisdom are not sufficient to depend on;^[114] the ruler is like a mirror, which reflects light, doing nothing; he is like scale which establishes equilibrium, causing lightness and heaviness to discover itself.^[153] (Shen Buhai fragments)

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 fa models and measures, and reliance is placed on private appraisal, in all those cases there would be a lack of definiteness. Shangjunshu^[154]

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.^[154]

If the lord of men abandons fa and governs with his own person, then penalties and rewards, seizures and grants, will all emerge from the lord's mind. The reason those who apportion horses use ce-lots, and those who apportion fields use guo lots, is not that they take them as superior to wisdom, but that they stop resentment by these means. Shen Dao, Qunshu Zhiyao, Wei Zheng ^[38]

Doctrines of names

Following the Han Feizi,^[155] Shang Yang, Shen Buhai and Han Fei were often identified under the Han Feizi's "Xing-Ming" doctrine of "forms and names" as a subset of shu technique.^[156] including by Sima Qian.^[157] It would serve as a secondary moniker for them.^[4] Combined with Shang Yang, the meaning of Xing "performance" is gradually lost as punishment, so that Shen Buhai would look more like Shang Yang.^[158] Popular in the Han dynasty, the Xunzi preceding the Han Feizi likely had a distortive effect.^[159] With a "Way of the Ruler" chapter like the Han Feizi,^[160] its introduction was the only work to use the term as "the names of punishments".^[161] Recalling Liu Xiang, Pei Yin's commentaries demonstrate some understanding of Shen Buhai again in the fifth century.^[162]

Though considering shu a later term, Creel largely reflects a traditional understanding of him, with shu techniques like controlling the levers of power, appearing inactive but acting decisively when needed, hiding motivations, power and intelligence to avoid exploitation, appointing by merit, thwarting ministerial power, and only giving orders that would likely be obeyed.^[163] The broader techniques contribute to a view of Shen Buhai as based in deception, present throughout the Han Feizi, but was focused on administration.^[164][165]

Recalling Shen Buhai, chapter 43 considered administrative standards or method (fa) necessary, differentiating it under the term shu 术 (administrative) technique.^[166] Shu is defined here as examining or testing 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 in his own hands.^[167] Chapter 5 links the idea to the Way, while Xing-Ming as connected to reward and punishment is a doctrine of the Han Feizi's Chapter 7.^[168]

Though its later term is the Han Feizi's,^[169] retrospectively, Xing-Ming may be considered Shen Buhai "most important administrative contribution", in the sense referring to his line of practice.^[38] Arguably a central concept in the Han Feizi,^[170] it is at minimum a "crucial element".^[171] Sinologist Goldin compared it to a "bid for contracts", allowing ministers to appoint themselves to "titles", or offices.^[172] The Han Feizi's Chapters 5 "Way of the Ruler" and Chapter 7 "Two Handles" have examples of its doctrine,^[173] included under shu technique in chapter 43.^[174]

Creel argued: Han Fei from the late Hann state probably knows about his predecessor Shen Buhai, and past prime minister Shang Yang from the neighboring Qin.^[175] But the Han Feizi's Shang Yangian legal component is arguably more theoretical.^[113] The Han Feizi's chapter 5 introduction to its own version of Xing-Ming administration includes specific practical recommendations, and is not just theoretical.^[176] However, Han Fei likely would have considered its "impersonal governance" a suitable foundation for legal reform, as the Han Feizi says, once order is established.^[177]

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

Monopolizing the Two Handles of reward and punishment to prevent usurpation, chapter 7's reward and punishment are dispensed based on the performance of bureaucratic roles. Their "most detailed application" is in connection with fa standards as promises ministers propose themselves. In older scholarship, this would make it an argument against older, primarily legal positivist interpretations of the work,^[178] developing out of a non-penal practice that would not have required law.^[127]

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) 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 ^[179]

Sima Qian's inclusion of Shang Yang gives the impression he was familiar with the same doctrine;^[35] while there is no evidence Shang Yang literally studied Shen Buhai,^[180] the Book of Lord Shang does have "doctrines of names".^[181]

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^[148]

Sima Qian's Shiji attests the First Emperor as proclaiming Xing-Mings's practice.^[182] Though it is questionable that Xing-Ming was an integrated part of a legal system in Shen Buhai's time,^[38] it arguably is in Sima Qian's model of the Qin empire.^[148]

“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^[183]

Method and contract

At a broad level, Sinologist Zhong Yu compares Shen Buhai's administrative ideas as statutory law that might underlie it. In contrast to Han Fei, Shen Buhai does not require officials to report on affairs beyond their office.^[184] Creel did not argue Shen Buhai had no law, just that his fa (standards) referred to fa administrative method, in all or (almost^[185]) all cases.^[186] Han Fei mentions but criticizes Shen Buhai's early legal reforms as haphazard, issuing new laws but maintaining old laws. Han Fei terms his fa as Shu administrative technique. Sima Qian attests him as "prioritizing Xing-Ming",^[187] which Sinologist Goldin compared with contracts.^[172] The practice "does not presuppose a legal code."^[68]

Creel argued: "Han Fei says flatly Shen Buhai was not a Legalist."^[188] In older comparative scholarship, commands and punishments would be a reasonable example of legal positivism, where Han Fei connects them to fa standards or law. While advocating fa standards including law, Han Fei instead also includes commands and punishments under a doctrine of administrative technique controlling ministers.^[189] Despite Han Fei, Shen Buhai rewards ministers here instead. Challenging Creel's abandonment of a Legalist interpretation for Shen Buhai, Zhong Yu modernly argues that careful commands and rewarding meritorious ministers were examples of Shen Buhai's strictly enforced laws and decrees.^[190]

The reason why the ruler is honored is [that he has the power to] command. [But if] commands are not carried out, this amounts to having no ruler. Therefore, a clear-sighted ruler is careful about commands... Marquis Zhao of Han told Master Shen: “Standards and measures are very hard to implement.” Shenzi said: “Standard (fa) means meting out rewards according to actual merits, conferring appointments according to one’s abilities."

When Yu isn't arguing Shen Buhai as having strictly enforced laws, he suggests Shen Buhai's ruler "strictly adheres to impartial regulations in meting out rewards and official positions."^[191] Sinologist Hansen says of promotion regulations: "First, it is a case of a reward, not punishment. Second, it is not (a law-like sentence), or a command... what is important is its measurement-like character." The earlier Mozi developed the idea fa measurement standards. Following Mozi, it is historically easier to have measurement standards first, legal standards second.^[143] Creel argued its evolution as: model, method, technique, rule, regulation, law.^[192]

Though Han Fei defined Shen Buhai's fa as (administrative) Technique,^[103] standards that reward or promote can potentially refer to regulations. The Book of Lord Shang recommends military promotion regulations primarily based on cutting off heads. While the work does emphasize the military, it also suggests awarding farmers with ranks for grain, given the importance of agriculture for war. But it was unable to suggest how to implement it at the time it was written. Merit based on agriculture cannot be fixed.^[193] If the Qin felt at any point there was merit in selling aristocratic ranks for grain, they appear unable to implement the idea until nearly the end of the period.^[190]

Prior to the late period, Qin settles with granting ranks to settlers.^[194] As Yuri Pines noted, Han Fei advocates fa-shu (technique^[195]) as preventing deception, but fails to provide new administrative means of method accomplishing this,^[196] that is, apart from Xing-Ming.^[195] Rather than furthering the project of refining method for the selection of appropriate persons for positions, the Han Feizi advocates opening the administration back up, falling back on refining appointment by proposal and contract (Xing-Ming) as it's most prominently advocated method of appointment.^[197] Pines earlier supposed this a scheme to advance the interests of ministers,^[196] but considers Han Fei "unwaveringly committed to monarchism."^[198] Standards and measures are very hard to implement.^[190]

While Shen Buhai's fragments include appointment by contract, he advocated the ruler attempt to close up and implement fa, conferring appointment according to ability. A higher proportion of appointment by proposal clouds the development of fa appointment according to ability.^[199] Appointment by contract (Xing-MIng) can't reward merit, it can only reward contracts or it opens itself up to manipulation.^[200] At minimum, Shen Buhai tries to reform beyond it to reduce manipulation.^[201] Han Fei advocates his predecessor's project of method-technique as failing, lacking a sufficient base of standards.^[202]

If the Pei Yin commentaries are to be believed, Liu Xiang admits that Shen Buhai's supervisory technique aimed to abolish punishment.^[203] In the Han Feizi's Chapter 7 Two Handles, Shen Buhai's ruler "punished the Supervisor of the Jacket, because he... failed at his task; and punished the Supervisor of the Crown, because he... exceeded his office." The chapter finds it necessary to begin by defining punishment with execution as a desired range. While this is not to say there was never execution, despite the Han Feizi, there were punishments besides execution.^[204] If the Han Feizi already had much ministerial penal law, it would already have punishment. If it already had much ministerial penal practice, it would already have developed law for it, or failed. It advocates law alongside ministerial punishment.^[205]

Hansen termed the Han Feizi's punishment and reward "independent general strategies". The work advocates law, but also places punishment under shu administrative technique. Alongside punishment, it advocates clear standards. Retrospectively, it can be understood why. It would have been necessary to define and reform the standards before punishment could be implemented as a predictable deterrent. Without standards, penal practice fails.^[206] It is easier for Shen Buhai to try to develop supervisory 'technique' that would allow him to avoid having to deal with punishing ministers.^[207] The Book of Lord Shang advocates heavy punishment not simply in attempt to stop crime, but in an attempt to avoid having to punish. If the standards fail to terrify, they will fail.^[4] The political cost of penal decision making is too high. Standards and techniques attack the Confucian bureaucracy.^[205] Rewards do not just serve state goals. They reduce crime, and therefore punishment.^[208]

Shang Yang

Emphasizing legal standards (fa), the Han Feizi and the Han dynasty saw Shang Yang and Book of Lord Shang as focusing on penal law. Along these lines, Creel's early work accepted Shang Yang as Legalist, inasmuch as the term is used.^[209] Yuri Pines usually translates the Book of Lord Shang's fa as law.^[210] But Shang Yang and the Book of Lord Shang's programs were broader than penal law. Han Fei elementalizes him under fa, but he too treats his fa (standards) as a broader standardized sociopolitical program.^[211][143] Fa was not the only ancient Chinese concept of law. Fa as law by comparison is a quite general concept of objective measurement standards as law.^[212] Fa as broad political institutions is arguably dominant among the texts, a meaning it retained in Imperial China.^[213][214]

While fa as meaning law would be correct in many cases,^[4] and Legalism as a translation of fajia would only be 'imprecise',^[215] it would be quite an quite inaccurate for their currents as they existed in the Warring States period.^[4] The Book of Lord Shang contains some early ideas on ruling a state through laws and bureaucracy.^[216] The work addresses statutes mainly from an administrative viewpoint, and many administrative questions, including an agricultural mobilization, collective responsibility, and statist meritocracy.^[217]

After Shang Yang's execution following the death of Duke Xiao of Qin,^[218] the Qin abandoned his harsh punishments but kept his reforms.^[219] Shang Yang's followers sought broader ways to strengthen the state. Though still prioritizing agriculture and war, Chapter 25's Attention to Law promotes strict legal standards (fa) for ranking officials, partly to curb ministerial cliques.^[220] Approvingly recalled by Han Fei as an example of Shang Yang's program, military promotions, ranks and salaries as rewards would likely be translated as law. But it primarily functions as a regulation measuring military accomplishments against fa standards. It is a suitable example of fa in its basic sense as measurement going back to Mozi.^[143]

Agriculture and war

See also: Discourses on Salt and Iron

Michael Loewe's 1986 Cambridge History still considered fa law a first principle of the Book of Lord Shang, upholding state power. Relying on group responsibility in the early period, Shang Yang's fa has both rewards and punishments. But Loewe considered Shang Yang's major aim a "unified, powerful state, based on an industrious peasantry and disciplined army", establishing a hierarchy of military ranks carried over into agriculture in the late period.^[221] Agriculture and war may have been Shang Yang's "single most important slogan."^[222] Though Xun Kuang is probably accurate in considering Shen Dao to be focused on fa administrative standards,^[223] his secondary subject of shi or "situational authority", of which he is spoken in Chapter 40 of the Han Feizi, is incorporated in The Art of War.^[224][225]

By the early Warring States period the kings had become more powerful, recruiting officials with an aim to advance universal census, taxes, agriculture, and finally universal military service as part of mobilization efforts. The only surviving work of its kind, the Book of Lord Shang represents an extreme example of this early mobilization. Extending to the population, the Qin organized society on a military basis as familial, mutual responsibility groups of five and ten for military recruitment. This military reorganization shaped its overall policy.^[226] Sima Qian considered its reform the first of Shang Yang's accomplishments.^[227]

Prime ministers Shen Buhai and Zichan were both concerned with the recruitment of ministers and defense. 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. Said to have maintained the security of his state, he was noted historically both for bureaucracy and making the Hann state's military strong. Han Fei may criticize Shen Buhai compared with Shang Yang, but the Strategems and Sima Qian considered defense of the Han state a major consequences of, conversely, his foreign policy and administrative reforms.^[228][229]

Alongside standardized penal law, Shang Yang and Han Fei's (desired) ruler oversee colonization, taxes, the military, and for Han Fei, administration of the bureaucracy, allowing accountable ministers to volunteer themselves to office on the basis of proposals. Considering them harmful to such ends, Han Fei opposes traditional privileges, demagoguery, tyranny, and corvée.^[230] Yuri Pines takes Shang Yang's "overarching commitment" as a centralized, "rich state and powerful army", with an to aim "unify all under heaven" and establish the next dynasty. Rule by fa standards and penal punishments are secondary to victory.^[231]

Loewe considered Shang Yang's economic and political reforms unprecedented, far more significant than his personal military achievements. But he was arguably 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.^[232] The Han Feizi contrasts Shang Yang with Shen Buhai,^[233] but pairs Shang Yang with general Wu Qi from the Chu state as a model reformer;^[234] Wu Qi's reforms were just not as successful as Shang Yang's.^[108]

Pines takes 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.^[208]

Late intersection

Early Warring States period

Further information: Shen Buhai

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.^[235] But early Central Chinese thinkers were likely not familiar with him as a school;^[236] or, at least, do not discuss him or associated writings in preserved texts,^[37] with the late Han Feizi their first preserved reference outside the Book of Lord Shang.^[237]

Nor would Shen Buhai seem as influential as Shen Dao until later in the period.^[37] The Han Feizi recalls what it termed Shen Buhai's Shu technique as earlier a more secretive doctrine of the Hann state kings.^[238] The Huangdi Sijing would have to be argued into his time period,^[239] but the work has more is more concerned law than the early Shen Buhai, with more developed natural law arguments.^[240][241]

However, Han Fei probably understates Shen Buhai's achievements as compared with Sima Qian.^[242] Xun Kuang felt it necessary to criticize him in the later period.^[243] The Han Feizi recalls Shen Buhai's ideas alongside Laozi in Chapter 5.^[244] Reversing their traditional chronology, Sinologist Herrlee Creel speculated that Shen Buhai might have influenced Laozi and Zhuangzi. Though the Zhuangzi references Shen Dao instead,^[245] it does incorporate similar Xing-Ming ideas to Shen Buhai in its "Way of Heaven" chapter.^[246] Shen Buhai's wu wei employment of ministers more evidently influences the Daoistic Huainanzi in the Han dynasty.^[247]

Preceding Han Fei, the late Xunzi is familiar with Shen Buhai, Shen Dao, and the Qin, but not Shang Yang.^[243] Sometimes compared with Shang Yang modernly, the late Guanzi has comparable "Xing-Ming" administrative doctrines to Han Fei.^[248] The Huangdi Sijing has influences comparable to Shen Buhai, Shen Dao and Han Fei, but with direct Shen Dao influences most evident.^[249] Seeking to "comprehend all knowledge" akin to the later Shiji,^[95] the late Qin state's encyclopedic Lushi Chunqiu incorporates a selection from Shen Buhai's doctrine.^[116]

"Daoism"

A partisan of what Sima Tan called Daoism, Sima Qian could be expected to argue from its point of view. The itself term likely referring to both dao and de, it does not have the exact same meaning as what is later called Daoism.^[250]

Though characterizing Shang Yang as "a man of little kindness",^[98] Sima Qian may well not have regarded Fajia as referring to Shang Yang and Han Fei, simply giving Shang Yang his own chapter.^[251] 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.^[252] But the Shiji regards Shen Buhai as implementing the Way in his own time.^[86] Shen Buhai has still modernly been argued to have been a more cooperative figure than Han Fei.^[253]

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.^[86] Shiji 45

Although considering Han Fei cruel,^[87] Sima Qian discusses him and Shen Buhai alongside Laozi and Zhuangzi,^[254] taking them as originating in dao ("the Way") and de (inner power, virtue), or "the meaning of" the Way and its virtue (Daodejing).^[255] Sima Qian considered Laozi the most profound of them, but of the four, places Shen Buhai just below Laozi and the free-spirited Zhuangzi.^[87]

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.^[256] Sima Qian attested Shen Buhai, Shen Dao and Han Fei as "rooted" in Huang-Lao or "Yellow Emperor and Laozi (Daoism)".^[257] Hence, Shen Buhai is said to be rooted in a kind of ruler or (Yellow Emperor) centered, Laozi "Daoism" in the Shiji.^[258][259]

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.^[260] 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.^[261] Sima Tan's Daojia only comes to mean something like Daoism as modernly understood a hundred years after Sima Qian. Narrowed down, it to comes to refer Laozi and Zhuangzi as basic examples as the Zhuangzi regained popularity in third century A.D.^[262][263]

Wu wei

Traditionally taken as (Laozi) Daoist rooted via Sima Qian, some earlier modern Chinese scholars especially would take Sima Qian's account as factual, based on comparison. 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. Somewhat Confucianistic, Shen Buhai most resembles the Han Feizi, and may have preceded the Daodejing. But if so, he does bear a "striking" resemblance to Laozi.^[264]

Though scholar Pei Wang primarily treats the similarities and differences of Laozi, the Huangdi Sijing and Han Feizi, at least in review with Pei Wang, Yuri Pines Dao Companion to China's fa tradition modernly expresses openness that that early thinkers like were "indebted" Shen Buhai to Laozi.^[265] If he was, he is significantly more administrative, emphasizing "inactivity" as "holding the levers of power", while delegating routine managerial functions. He emphasizes the internal tranquility of the ruler, but advocates a system of tallies with reliable ministers as its aid.^[266]

Zhuangzi typically refrains from actions more generally, but Laozi and Shen Buhai do share a similar idea of wu-wei (non-action) in the sense of using it as a governmental technique.^[267] 'Underlying' the management of ministers,^[268] 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.^[269]

Creel elaborated a similar relationship with Confucius, and Shen Buhai may well have been influenced by Confucius. Shen Buhai and Confucius both emphasize selecting able ministers, but Shen Buhai "drastically" revises the idea by vigilantly overseeing their performance. Not involving in details, or ministers' duties or functions, Shen Buhai's wu-wei "inactivity" benefits the ruler by allowing him to supervise the government in the first place.^[270][267]

Shen Buhai's ruler does try to selectively reduce activity in the sense of relying on ministers and technique. A parable from the Lushi Chunqiu encourages the ruler to rely on technique and ministers rather than use his own judgement for such affairs as livestock. If the ruler has to stoop to using his own judgement, reliance on his personal judgement will cause quarreling with the ministers.^[116]

The contradictory distinction is more pronounced in parts of the Han Feizi, which express disbelief that the ruler can actually relax from his own regulatory functions, particularly the mechanical checking of ministerial performance. But the work does prominently try to get the ruler out of politics, leaving duties in minsters. If the ruler has an able minister like the one presenting the Han Feizi, perhaps he should occupy himself with paperwork.^[269]

Old conservatism

Not considering Shen Buhai as apt a legal reformer as Shang Yang,^[271] the Han Feizi likely understates him;^[272] Sima Qians account of him may be fairer.^[88] law could be expected to some extent support what Han Fei called shu administrative technique, as the selection, evaluation, and reward or punishment of ministers.^[273] Issuing some new law, Shen Buhai maintained the old law.^[274] The administrative doctrine he developed would not much have required as much law. Later termed Xing-Ming,^[127] Liu Xiang defined Shen Buhai's Xing-Ming as supervisory technique (shu) replacing punishment.^[203] In parable form, the Qin's Lushi Chunqiu advocates this doctrine.^[116]

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.^[89] While Creel translated Shen Buhai's fa as (administrative) method, he admits a translation of law can be argued law can be argued a better translation this case,^[185] which is argued by Chinese scholars as an example of his legal thought.^[275]

The sage kings depended on laws (fa, arguably including methods^[276]) instead of wisdom in government. They employed quantitative measures (数 Shu enumeration; figures, numbers^[276]) 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^[154]

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".^[277] 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^[278]) do not accept permanent laws or Ways of government.^[279]

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 ^[277]

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 laws and techniques in Laozi rhetoric, Han Fei circles around, falling back on what has "commonly been dubbed" Huang-Lao, or the "foundational naturalism" of the Sijing, containing "precisely" the same idea of a "cosmic natural order", serving as a "basis, or foundation, for construction of human order."^[280]

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) ^[280]

Shen Dao

With the Han Feizi being Shang Yang's first preserved reference outside Qin,^[281] doctrines associated with the Daoistic Shen Dao (and later Zhuangzi^[282]) might have played a more major early influence in central China,^[283] in connection with the flourishing Jixia Academy.^[284] Not explicitly familiar with what was later called Daoist or Legalist schools,^[285] along with Shen Dao, the Zhuangzi references figures from the school of names,^[286] which includes central Chinese practitioners of law.^[287]

Shen Dao or similar doctrines have an influence in a later chapter of the Book of Lord Shang,^[237] and a chapter in the Han Feizi (Ch40),^[288] sharing the doctrine of positional power with the late Guanzi.^[289] When not grouped with other works on fa in the Han dynasty, before Han Fei, Shen Dao belongs more with Laozi, Yang Zhu, and Zhuangzi,^[290] contrasting with the individualist Yang Zhu.^[108] The more administrative Shen Dao was less focused on Dao in a cosmic sense than later Daoist texts,^[291] but his "Way of Heaven" can be directly compared with Laozi,^[292] who tradition holds also wrote "because he was compelled to."^[293]

Listed in the Outer Zhuangzi after Mozi and (Mohist) Song Xing, but before Daoists Guan Yin, Laozi, Zhuangzi, and Hui Shi, Shen Dao shares content with the (likely earlier) Inner Zhuangzi.^[294] If he preceded the Daoist figures, he may well have influenced them;^[295] inasmuch as was speculated to have he written its "Essay on Seeing Things as Equal", he could considered a Zhuangzi himself.^[296] The Han Feizi's discussion of Shen Dao quotes a parable from a known lost chapter of the Zhuangzi.^[297][296]

The individualist "Robber Zhi" chapter of the Zhuangzi blames the Yellow Emperor as bringing a bout a decline into war, while the Book of Lord Shang and the Huangdi Sijing recall the Yellow Emperor as a hero rescuing the people from chaos.^[298] Yangism and the more primitivist parts of the Zhuangzi would oppose the Yellow Emperor as well; but several of the Zhuangzi's chapters do go on to endorse the Yellow Emperor, Yao, Shun, and administrative technique, at as least ranked below wu wei inactivity, benevolence and propriety.^[299]

Positional power

Placed before Shen Buhai and Shang Yang in the Han Feizi's outer chapter 40,^[125] the Han Feizi discusses Shen Dao in relation to power.^[289] But while the Doctrine of Position does have a major influence for the Han Feizi,^[300] Shen Dao was more naturalistic,^[291] with a conception of power resembling the Zhuangzi's discussion of him, depicted as floating relying on such things as the wind. In contrast to Han Fei's "power founded by men", Shen Dao's power was still one based in "relying on circumstances", such as nature, which corresponds with the Zhuangzi's discussion of him. Both discussions of him use the same kind of imagery of being "tossed" or "driven" by the wind.^[301]

The flying dragon rides on the clouds and the rising serpent strolls through the mists; but when the clouds and the mists disperse, the dragon and the serpent become the same as the earthworm and the large-winged black ant, because they have lost what they rested on... If the bow is weak, but the arrow flies high, it means that it is driven up by the wind.(Han Feizi ch.40)^[302]

Shen Dao discarded knowledge and renounced the self; he followed the inevitable and was indifferent to things... shifting and slippery, he changed about with circumstances. He went where he was pushed and followed where he was led, like a whirling gale, like a feather tossed in the wind. (Zhuangzi)^[303]

Where the Han Feizi's Chapter 5 refers to a Way of the Ruler based in controlling ministers,^[304] Shen Dao did 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.^[305] Han Fei's doctrine of position relies more on institutions in the late period, as to make it more comparable with the late Mohists.^[306] But, Han Fei does defend Shen Dao. Han Fei's discussion does not advocate tyranny, but that most rulers are mediocre, and should rely on institutions.^[307]

Shen Dao's ruler was a "single esteemed person", intended to benefit all under heaven against ministerial oligarchies.^[305] 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.^[289] Chapter 48 considers shih power a necessary precondition of enforcing strict order and finally carrying out fa law.^[308]

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.^[108]

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.^[309] 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,^[310] but would be a radical departure from earlier ideas.^[311] The Qin idea of an eternal dynasty would seem more connected with that of relying on law rather than the ruler.^[312]

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.^[313][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.^[83] Making use of the term, Shen Buhai and the Guanzi do have administrative ideas that go back to the Confucian rectification of names, or cheng ming.^[248]

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.^[314] 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.^[315] 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,^[278] combined with Shen Buhai in Chapter 5.^[316]

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.^[317]

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'.^[318] The Huang-Lao boshu developed a more metaphysical naturalist view, promoting a "predetermined natural order" for humanity.^[319] The Han Feizi only hints at such a view, affirming the Dao as "the standard of right and wrong".^[320] The Later Mohists and Han Fei moved away from an emphasis on heaven or nature,^[314] towards one of a man-made Sovereignty, a view affirmed by the Han Feizi's discussion of Shen Dao.^[321] 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."^[322]

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.^[323] 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:^[324]

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.^[28]

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.^[325] 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.^[326]

Syncretism

While Shen Buhai may still not entirely align with Laozi or Zhuangzi, he fits alongside the "Daosim" of the Jixia Academy's era as a "practical political thinker".^[327] As another alternative model of wu wei from the period, the Huangdi Sijing switches to an active posture at "the right moment".^[328] Though emphasizing appearances, if Shen Buhai had been quoted from the Zhuangzi, he 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 practice of wu wei "inactivity" that Creel compared with Judo.^[329]

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)^[330]

SchooSima Qian does characterize Shen Buhai and Han Fei as rooted in a (Huang)-Laozi ("Daoism"), and does recall them alongside Zhuangzi. Shen Buhai or Huang-Lao may emphasize ideas like fa or xing-ming more,^[331] but such demarcations are a later Confucian concern.^[332] Along with the Zhuangzi, the Daodejing arguably does hold a negative of view law;^[333] but the Zhuangzi goes on to accept a place for administrative technique within government,^[299] i.e. Xing-Ming.^[334] Though more obvious for the early Han, something akin to what Sima Qian called "Huang-Lao Daoism" may well already have become more dominant in the late period.^[335]

Sima Tan criticized fa where "strict or unkind" as he defined it,^[336] but claimed the Dao-school to incorporate the good or essential elements of all the schools.^[337] This syncretism marks the late Warring States period, characterizing "Huang-Lao".^[338] According with Laozi and Zhuangzi's idea of wu wei, at least by its own words, Sima Tan's Daoism primarily opposes Confucianism as exhausting the ruler.^[339] It also stresses changing with the times, according with the Han Feizi and parts of the Zhuangzi. Sima Tan's ruler should "do what is appropriate to circumstances."^[28]

The Way that Laozi esteemed was [based on] emptiness; thus, he reacted to changes through non-action. Shiji 63^[87]

("Daoism") lets people act according to the movement of time, respond to change of things, establish customs and inspire things. Sima Tan ^[340]

Sinologist Hansen argued China's officialdom as becoming more Huang-Lao "Daoistic", lacking in Zhuangzi influences in the late period.^[93] 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.^{[341][152][342]}

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)

Works of Rule

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

Along with founding Han dynasty figures,^[40] Sima Qian claimed Shen Buhai, Han Fei and Shen Dao as "rooted" in Huang-Lao or "Yellow Emperor and Laozi (Daoism)".^[343] 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.^[93] 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.^[344]

Although the Han Feizi can be read through a Daoist lens,^[345] its writers likely did have a more Realist outlook.^[4] With Daoist or Legalist school distinctions not existing before the Han dynasty, the "political partisans" who included Laozi commentaries in the Han Feizi probably did not see two separate schools; they probably saw works of rule.^[346][347] Sima Qian and Ban Gu describe Huang-Lao as works of rule.^[258] While it is a question how much such content might have been extant in Shen Buhai's time,^[348] the Sijing's Jingfa and Guanzi regard fa administrative standards as generated by the Dao, theoretically placing them, and some of those the Confucians later called Legalists, within a "loosely Daoist" context focused on rule.^[349]

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.^[350] "Huang-Lao" termed texts like Shen Dao and the Sijing still referred to a Way of Heaven, while the Han Feizi more directly refers to a Way of the ruler.^[304][351] The Sijing has a more "naturalist" conception of the Way that might restrain the ruler;^[352][353] Shen Buhai and Shen Dao were also more naturalist, with Shen Dao away from an older naturalism towards a concept of Dao.^[354][355] The Han Feizi and Later Mohists were moving away from the earlier naturalism of Shen Dao,^[321][314] and Laozi.^[322]

The Han Feizi's Laozi commentaries could theoretically precede the Xunzi,^[356] while being late additions to the work itself, isolated to a few chapters. But it does make a "sustained effort" to integrate a Daoistic context. Roughly contemporary to the Mawangdui silk texts and Huangdi Sijing, they would together theoretically indicate the kind of syncretism that was becoming dominant by the late Warring States to Qin dynasty.^[357] While the Han Feizi itself may not the most effective example of Daoistic sycnretism,^[358] translator W.K. Liao considered the Han Feizi's Chapter 20 "Commentaries on Lao Tzŭ's Teachings" academically thorough.^[359]

Some scholars argued a post-Han Fei dating for the Mawangdui Silk Texts,^[360] 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.^[361] 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.^[249]

Taking Shen Dao as an early theoretical representative of what would later be termed "Daoism",^[362] Hansen interpreted those works later termed legalist as works of rule.^[363] 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.^[137] 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.^[364][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.^[365]

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 what was later termed Daoism, together especially with the early Daodejing, 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.^[366] 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,^[367] and for impartial laws and techniques as purportedly bolstering the authority of a less active (wu wei) ruler.^[368]

The Daodejing regards the Way as nameless, but the establishment "names" like titles as inevitable with the establishment of regulations, advising that they not be carried too far.^[369] Cautioning against implementing too many laws, it 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.^[370]

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,^[371] "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".^[372][373] In the Guodian and Mawangdui versions, the passage is combined with passage 18.^[374]

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)^[375]

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.^[376] Shen Dao's "Understanding Loyalty" includes a "concern that a focus on loyalty arises only when things have already begun to go wrong."^[377] 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.^[378] More in line with Confucianism and others parts of the Laozi,^[379] 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.^[380]

The Han Feizi's late Daodejing commentaries are comparable with the Daoism of the Guanzi Neiye,^[381] and with its "Seven Standards" chapter, connecting the Way with patterns and principles.^[382] 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,^[383] sharing with Shang Yang and Shen Dao a view of man as self-interested.^[384] 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.^[385]

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.^[386] Many Confucian scholars were also influenced by the Daodejing.^[387]

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.^[388][389] Though later combined with Shang Yang, Han Fei names Shen Buhai as progenitor for his doctrine of Xing-Ming.^[390]

The term Xing is an example of a model or standard (fa),^[391] prominently dating back to Zhou texts taking King Wen of Zhou as a model.^[392] It still referred to models when Zichan used the term in his penal reforms.^[370] However, the Han Feizi states than Shen Buhai actually uses the earlier, more common philosophical equivalent, the Mohist "ming-shi", or name and reality,^[393] so that it likely originates in the name and reality debates of the Later Mohists (or "Neo-Mohists") and school of names (Xingmingjia).^[394] 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.^[395]

Liu Xiang (Pei Yin) recounts Shen Buhai's book as advocating Method rather than punishment.^[162] 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."^[33] Though having a meritocratic goal,^[396] 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".^[33]

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.^[397] 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.^[398]

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.^[248]

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.^[399] 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.^[400]

By the later Han, scholars less knowledgeable than Liu Xiang were not always aware that Shen Buhai and Shang Yang differed.^[401] 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.^[402]

Xing-Ming (Daoism)

Informally associated by the Han Feizi with Laozi,^[244] 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.^[403] With the Qin's Book of Lord Shang only visibly intersecting central Chinese tradition with the Han Feizi,^[281] 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.^[93]

Sima Qian pairs the two, saying "Shenzi (Master Shen) was rooted in Huang-Lao (Daoism) and prioritized xingming."^[404] Sima Tan criticizes strict administrative practices in favor of his Daoism,^[126] but Han Fei does not develop mechanically strict Xing-Ming until the end of the Warring States period.^[405] Sima Tan clearly includes Xing-Ming as part of his Dao school (Daojia), in less technical terms.^[406]

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^[406]

Contrasting with Laozi, Han Fei and Qin break from a Huang-Lao Daoist Xing-Ming focusing on a Way of Heaven based on an inner reason of laws, inasmuch they 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.^[148] Shen Dao, the Huangdi Sijing, and Laozi still referred to a more conceptually "naturalist" Way of Heaven,^[407] and Shen Buhai's doctrine, with the Huainanzi it likely influenced, still believed in "not interfering with the natural tendency of names and affairs to manage themselves."^[408]

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.^[409] 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.^[410] 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.^[411]

Though by its own statements the Zhuangzi generally favors self cultivation,^[412] differing "dramatically" from prior chapters,^[413] the Outer Zhuangzi's Chapter 13 "Way of Heaven" gives 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.^[414] Not fully "Daoist" as later later understood, it would generally be taken as reflecting early Huang-Lao or "syncretist" thought.^[415]

The Huainanzi's Zhushu, which Goldin translates as "Taking Shu as One's Ruler" or "Esteeming Technique", conveys naturalistic ideas akin to Shen Buhai in the same sense Liu Xiang recalled him, as "to follow and comply, and delegate responsibilities to one's subordinates."^[408]

"Names rectify themselves; affairs settle themselves. Thus he who has the Way grants names their autonomy but still rectifies them; he follows affairs but still settles them." Shen Buhai "The Great Body"^[408]

Each name names itself, each category categorizes itself. Things are so of themselves; [the ruler] lets nothing emerge from himself. Huainanzi "Zhushu"^[408]

Way of the Ruler

While the Han Feizi includes ideas of law, Laozi's fa is usually translated as still referring to general standards or models.^[416] Laozi and Zhuangzi generally lacked and even opposed law because they did not regard words and names as "sufficient to express the Way",^[417] 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.^[418]

Make freedom from desire your constant norm; thereby you will see what is subtle (妙)^[419]
Constantly with desire, thereby observe the boundaries^[420] (徼 jiao literally "border", "outer fringe" James Legge.) (Laozi 1)

The Han Feizi's commentaries on Laozi are a critique.^[421] For Han Fei, "names" refer to things like ministerial proposals,^[422] or "titles", so that Shen Buhai's concept of "names" can critique Laozi, at least for the Han Feizi's purposes.^[423] 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".^[244] 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.^[422] 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.^[424]

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.^[423] Compared with Laozi, the Han Feizi's "Way of the Ruler" has much less ambiguous language,^[425] promoting "the ruler's quiescence",^[128] "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.^[426]

In "strictly practical" terms,^[427] Shen Buhai, Shen Dao or Han Fei might loosely be thought of as originating in a Daoistic 'way in thought'^[428] in the sense of governmental models (or standards, fa) "derived from Dao",^[349] which Han Fei ultimately supplants with law.^[429] Laozi, Zhuangzi, Shen Buhai or Sima Qian did not generally advocate laws (fa),^[430] but the recovered Mawangdui Silk Texts Huangdi Sijing did emphasizes standards (fa) as including law.^[431] As the first sentence of the work,^[432] its Jingfa text regards the Dao as generating standards,^[349] with arguments more comparable to natural law.^[249] "Huang-Lao" would theoretically differ in still seeking more to conform law with the Way.^[429]

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.^[433]

[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

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.^[434] 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.^[435]

But words and names are essential to administration,^[436] 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.^[437]

Although more or less representing an actual social category of debaters,^[438] 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").^[439] Engaging in discussions of "sameness and difference", such distinctions would naturally be useful in litigation and administration.^[440] The more advanced Names and Realities discussions date to the later Warring States period, i.e. after Shang Yang, Shen Buhai, and Mencius, in Han Fei's era.^[441]

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,^[442] using fa comparative models for litigation.^[440] The Qin dynasty used comparative model manuals to guide penal legal procedure,^[150]

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.^[443][444] While Liu Xin associates them with a harsh Legalism,^[445] 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.^[446] Jia Yi earlier criticized Qin for insufficient humanity and righteousness,^[447] terms the Shiji's First Emperor describes himself in.^[448]

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.^[449]

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.^[450] 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.^[451] Their abolition is said to be inspired by Daoism and Confucianism;^[452] politically, they were abolished because ministerial interests would not tolerate being subject to them.^[453]

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.^[454] Bargaining with Han Feizi loyalists and hardliners seeking to abolish the legal code, he sought a compromise abolishing the physical punishment of ministers,^[453] not unlike Shen Buhai.^[162] He has more Zhuangzi influences,^[455][456] and was a major Confucian commentator.^[447] But he could be termed Daoist or (inaccurately) Legalist, including Shen Dao influences.^[457]

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.^[458] 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.^[459]

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.^[460]

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.^[461] Cao Shen at most takes a more "hands off" approach after the Qin's fall.^[344] 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.^[462] 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".^[463]

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.^[450] Most commonly sentencing or pardoning the people into fines or labor like canal digging,^[464] and insisting on clear protocols and forensics, it is "impossible" to deny the 'basic' justice of Qin law towards the people.^[465]

Leaning Daoistic,^[466] the ministers recruited to compose the late Qin state's Lushi Chunqiu place a high premium on learning,^[467] trying to convince the ruler of his superiority, provided he follows along and lets his learned officials do all the work.^[341] Despite considering them dangerous, the military regime impartially tolerates their various ideologies, incorporating them in the Qin encyclopedia.^[120] 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,^[468] rather than ban their ideologies from the government, as under Emperor Wu's Confucian Han.^[469]

Abolition of punishment

In contrast to Shang Yang and Han Fei, Shen Buhai or Shen Dao do not advocate harsh punishment.^[470] 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.^[471] 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.^[78]

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.^[472] 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.^[162] The Han Feizi's Chapter 5 recalls him alongside Laozi,^[244] linking officials titles and performance with rewards and punishments more in Chapter 7's the Two Handles ("Er bing" 二柄).^[473]

The Han Feizi's chapter 7 The Two Handles insists that ministers must never be allowed to reward and punish on their own authority.^[474]

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.^[475] 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.^[476] 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.^[477]

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.^[478]

Eradicating punishments

In the period preceding unification, Qin laws diverged significantly from ideas espoused in Book of Lord Shang (Shangjunshu):^[117] 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][479] 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".^[448] A major reform of the primarily administrative Qin dynasty focuses on restraining ministers, instituting office divisions that cannot punish at will.^[480][481]

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.^[112] Although written as an interview with Shang Yang, its recommendations would have been too sophisticated for his time.^[482] 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.^[483][484]

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:^[485]

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",^[486] 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.^[487][488]

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.^[489] 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.^[490]

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. A main argument by the Han Feizi's 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.^[491]

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.^[492] 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.^[493] 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.^[494]

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.^[495] 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.^[496]

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.^[497][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.^[498] 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.^[465][499]

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":^[500]

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.

Late Qin association

Thought to have had a more direct influence on the Qin dynasty in earlier scholarship, Qin law diverged significantly from earlier ideas espoused by the school's figures.^[117] Not much emphasizing the group responsibility common to Shang Yang's harsh reforms,^[475] the Qin dynasty generally willing to work out alternatives to mutilating punishments.^[501] Recalled by the late Qin state's encyclopedic Lushi Chunqiu,^[116] Shen Buhai likely influenced the Qin dynasty, but would have had a more moderate, administrative influence as compared with the earlier Qin state reforms of Shang Yang,^[502] only considered strict after Sima Tan's time.^[78] if Li Si practiced Shen Buhai's doctrine, then he would theoretically supervise ministers.^[401][503]

Shang Yang, Han Fei, and Shen Buhai are only gradually associated together with the Qin dynasty and its fall as opinion soured.^[504] Excepting bureaucratic meritocracy, their more statist currents declined less because of the Qin's fall, and more because power shifted from state control to local elites, including causes such as the end of Shang Yang’s universal military service in the later Han dynasty.^[505] Jia Yi only blames Shang Yang's doctrine for Qin failure under the fifth Emperor Wen of Han, amongst broader arguments.^[506] The Daoistic Huainanzi discussion of the Qin's fall is unrelated;^[507] blaming Shen Buhai and Han Fei for the Qin's fall was likely outside their early context.^[504] Likely referring to the Han Feizi's combination,^[59][60] the Confucian literati of the Salt and Iron Debates blame Shang Yang and Shen Buhai's doctrines for the Qin's fall, but the text does not understand the difference between them.^{[401][508][509]}

A partisan of "Huang-Lao Daoism" in older terms,^[510] Sima Qian's Shiji has a higher opinion of the "Daoistic" Shen Buhai,^[86] and did not include any of them together with Shang Yang.^[251] Sima Qian instead casts blame on Li Si for an abusive practice under the Second Emperor, recalling the Han Feizi's combined discussion of Shang Yang and Shen Buhai.^[252] Gradually becoming associated with Shang Yang and Qin through the Han Feizi,^[511] the Confucians split off the several texts, grouping them together under the broad key term of fa.^[332] A combined conflationary penal association of Shang Yang, Shen Buhai and Han Fei with the Qin dynasty is a component of Dong Zhongshu's (179–104 BCE) Biography (Hanshu Ch56), considering Qin officials "sometimes oppressive."^[512][513]

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.^[64] Arguing for Daoism (Daojia) in the reign of Emperor Wu,^[514] Sima Qian depicted Li Si as reciting a distorted version of Chapter 43 to the Second Emperor.^[252] Contrary to earlier depictions, along with other Han dynasty authors, Sima Qian also depicts Confucius as a legalistic figure.^[515] Advocating law, punishment and meritocratic appointment, Dong Zhongshu simply associates Shang Yang, Shen Buhai and Han Fei with the Qin dynasty again.^[516]

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.^[517]

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.^[518] 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.^[519]

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^[520]

The Fa School

Inasmuch as the term Legalism has been used modernly, Dingxin Zhao characterizes the Western Han as developing a Confucian-Legalist state.^[521]

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.^[522]

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.^[523]

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.^[524]

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.^[525] Shiji 120:3291

Legacy

Chapters 43 and 40 of the Han Feizi 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.^[526] But Shen Dao's fragments suggest he was also focused more on fa.^[527]

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).^{[528][529][530]}