Where Did Legalism Spread

The term “legalistic school” (fa jia 法家) is ubiquitous in studies of ancient Chinese political philosophy. Despite the many criticisms of its inaccuracy (e.g. Goldin 2011), the term can still be used wisely as long as two important points are taken into account. First, the legalists were not a self-confident and organized intellectual current; On the contrary, the name was invented as a post-factum categorization of certain thinkers and texts, and its main function before the twentieth century was that of a bibliographic category in imperial libraries. Therefore, the identification of a thinker or a text as “legalistic” will forever remain arbitrary; The term can be used as a heuristic convention, but should not (Pace Creel 1974) be used as an analyzer. Second, “legalism” is a problematic name. The Chinese term fa jia is already misleading because it inadvertently reduces the rich intellectual content of this current to a single keyword, fa. “Legalism” is a doubly misleading English translation, since the semantic scope of the term fa 法 is much broader than “law”; it also refers to methods, norms, impersonal regulations, etc. (Creel 1974:147-149; Goldin, 2011). It is therefore incongruous to discuss fa jia in the context of the Western notion of “rule of law” as it was popular in modern Chinese research (e.g., Hsiao 1979: 442-446) and as is sometimes still done today (Fu Zhengyuan 1996: 158-161). Given these intrinsic inaccuracies of the term “legalism”, it can only be used for heuristic reasons, as follows. The term is simply so prevalent in the scientific literature that replacing it with a new name will only confuse readers further.

This proposal amounts to a “nationalization” of intellectual activity. Han Fei does not fundamentally deny that some of the rival doctrines could benefit the state; It only denies its defenders the right to develop and elaborate their views independently of the state. Han Fei has no illusions about his rivals: intellectuals can only pursue their ideas to the extent that they are part of the state-imposed system of power, otherwise their ideas will be “cut off”. Elsewhere, he concludes: Hulsewe points out that Sima Tan regarded equality of treatment as the most important point of the “school of law”: “They do not distinguish between close and distant relatives, nor between noble and modest, but decide uniformly about them in law. [163] Although the Han Dynasty itself derived it from elsewhere, it adopted essentially the same denominations of crime, if not equality, that Shang Yang had established for Qin, without collective punishment of the three groups of relatives. [164] One of the main problems faced by Warring States leaders was recruitment into the civil service. During the aristocratic spring and autumn, the overwhelming majority of civil servants were descended from hereditary ministerial lines; Only exceptionally could foreigners join the government. This situation changed in the fifth century BC. A.D., when aristocratic lines were largely eliminated in internal struggles and members of the petty nobility – the so-called Shia “men of service” – were able to ascend to the head of the bureaucracy.

At that time, the new meritocratic discourse of “elevation of the worthy” (shang xian 尚賢) spread and upward social mobility became legitimate (Pines 2013c). But who the “worthy” were and how to determine their dignity was a matter of considerable uncertainty and confusion. While some texts have shown very sophisticated ways of recognizing the true value of the employee (Richter 2005), their recommendations required exceptional insight on the part of an employer and were largely unworkable. Instead, the most popular type of recruitment was based on a notion of “recognition” of one`s own worth (Henry 1987): an employee was recommended to the leader (or senior official), interviewed, and then his or her value was “recognized” and assigned to a senior position. This widespread practice has been deeply opposed by legalists. The very idea of relying on the vague notion of “dignity” and on the personal impression of the leader as the main means of recruitment was, in their view, fundamentally flawed, since it allowed for multiple manipulations. Shang Yang explains why “dignity” is a problematic concept in itself because of its own reputation: One of the controversial (un)famous diktats of the book Lord Shang says: “When the people are weak, the state is strong; therefore, the state that owns the way is doomed to the weakening of the people” (Shang jun shu 20:121; Book of Lord Shang 20.1). Elsewhere, the text clarifies: poems, documents, rites, music, goodness, self-cultivation, benevolence, righteousness, belligerence, prudence: if the state has these ten, the superiors [the people] cannot defend themselves and fight. If the state is governed according to these ten, then when the state arrives, it will certainly be dismembered, and if the enemy does not arrive, the state will certainly be impoverished. If the state annihilates these ten, then the enemy will not dare to arrive, and even if he does, he will certainly be repulsed; If an army is raised and sent into a campaign, it will surely conquer [the enemy`s land]; If the army is restrained and does not attack, the state will certainly be rich.

(Shang jun shu 3:23; Book of Lord Shang 3:5) Among men, everyone acts for himself. If you try to change them and get them to act for you, then there will be no one you can reach and employ. In situations where people are unable to act in their own self-interest, the above will not employ them. Employ people for their own [interests], do not employ them for your good; then there will be no one you cannot use (Shenzi, 24-25; Harris, 2016: 112). Therefore, my teaching is that those who seek advantages gain them nowhere else but in tillage, and those who want to avoid evil escape nowhere else but in war.