Chinese Legalism

The Lüshi chunqiu was written for and inspired the king who united the warring state to become China's first emperor in 221 BCE. This book explicates the concept of "proper timing," proposing that it helps bring unity to the diverse eclectic content of the text. The book analyzes the roles of human nature, the justification for the existence of the state, and the significance of personal, historical and cosmic timing. An organic instrumental position emerges from the diverse theories contained in (...) the Lüshi chunqiu. The conclusion looks at ways to apply the Lüshi chunqiu’s philosophy to contemporary issues of time and timing, human nature, political order and constitutions, social and environmental ethics. (shrink)

The Shenzi Fragments is the first complete translation in any Western language of the extant work of Shen Dao (350–275 B.C.E.). Though his writings have been recounted and interpreted in many texts, particularly in the work of Xunzi and Han Fei, very few Western scholars have encountered the political philosopher's original, influential formulations. This volume contains both a translation and an analysis of the Shenzi Fragments. It explains their distillation of the potent political theories circulating in China during the Warring (...) States period, along with their seminal relationship to the Taoist and Legalist traditions and the philosophies of the Lüshi Chunqiu and the Huainanzi. These fragments outline a rudimentary theory of political order modeled on the natural world that recognizes the role of human self-interest in maintaining stable rule. Casting the natural world as an independent, amoral system, Shen Dao situates the source of moral judgment firmly within the human sphere, prompting political philosophy to develop in realistic directions. Harris's sophisticated translation is paired with commentary that clarifies difficult passages and obscure references. For sections open to multiple interpretations, he offers resources for further research and encourages readers to follow their own path to meaning, much as Shen Dao intended. The Shenzi Fragments offers English-language readers a chance to grasp the full significance of Shen Dao's work among the pantheon of Chinese intellectuals. (shrink)

Even among those who work in the field of early Chinese philosophy,the name Shen Dao (慎到, ca. 360–285 BCe) rarely calls to mind much of interest, and what it does call up are often simply depictions of him in several of the more famous texts of the time: in the Han Feizi as an advocate of positional power; in the Xunzi as being blinded by a focus on laws; or in the Zhuangzi as one who wished to discard knowledge. Few (...) through the centuries have attempted to examine his philosophical thought in detail, in part because no complete edition of his work has existed since at least the tenth century. Fragments of the work attributed to Shen Dao do, however, still exist, and by examining them we can begin to piece together an understanding of his political philosophy. In doing so, we come to the realization that Shen Dao's ideas are important not only historically but also merit attention from those engaged in constructive political philosophy. In his historical context, Shen Dao was one of the first political thinkers openly to question the tight connection between ethics and politics that was assumed by a range of thinkers in the Confucian and Mohist traditions. In particular, he provides a range of arguments against the state relying on the moral cultivation of even some of its members, focusing not on changing or developing the innate tendencies of human beings but rather on working with the natures humans initially have. (shrink)

This essay is in the spirit of a friendly amendment. I have found Shklar's central arguments to be more compelling every time I have reread this book over the last twenty years. Nevertheless, I want to argue in this essay that in spite of Legalism's strengths, Shklar's core anthropological claim about the profession - more often asserted, rather than argued, throughout the book - that legalism, the attitudinal glue that binds lawyers professionally, consists of a commitment to the morality of (...) rule abidance - is flawed, not because it is wrong, but because it is underinclusive. While legalism consists of something like what she described, it is by no means only that... My second point, which I will take up very briefly toward the end of this essay, is that a fuller account of ideological legalism also casts the central normative question Shklar raised, regarding the appropriateness of legalism in international affairs, particularly in times and matters and questions of war, in a different light. If legalism consists of only a commitment to the morality of playing by the rules, then it does seem oddly inappropriate in the international arena. (shrink)

The Rule of law often is considered to be a criterion for legal positivistic thinking. According to this maxim: can the Chinese Legalistic thinking of Shang Yang and Han Fei be considered as a sort of Legal Positivism? There are many positions shared by both, like the idea of a positive law or the binding character of the law despite of person and sympathies or even the concept of the law as a system. There is, however a important difference between (...) them: legal positivism can be best described as “rule of the law” whereas Legalism best fits the idea of “rule by the law”, since there were no secondary rules stating how the legislator had to make the law. On the other hand, the strongest approach to draw a parallel between both is the commonly shared concept of realism of the law as social construction. (shrink)

法学是春秋战国时期的一个主要学派。“法者,编著之图藉, 设之于官府, 而布之于百姓者也。”法家主张法、术、势的结合。法、指法律制度 ; 术, 指君王驾御群臣、掌握政权、推行法令的政策和手段 ; 势 ; 指君王的权势.

本书内容包括:虚静无为之术、政治洞察之术、以法治国的艺术、赏罚的艺术、势治的艺术、用人的艺术、政治语言的使用艺术、法家与中国传统政治文化的现代转化。.

This essay argues that political realism is an effective heuristic for understanding The Book of Lord Shang, which it compares to the political thought of Machiavelli and Hobbes. It first lays out the premises of political realism as they emerge from this comparison: the real is the guiding heuristic of political realism; historical change is the fundamental condition; the nature of human beings is selfish but can also form customs favorable to political order. Based on these premises, the essay then (...) discusses the major propositions of political realism: the purpose of central authority is to provide the multitude with the benefits of order and to reward the ruler; the benefits of order warrant the commission of cruel deeds, also called the reason of state in the West; legal and extra-legal actions are the means by which the central authority imposes order and counters contingency; punishment is the primary means to make the laws prevail. The essay closes with considering the question of whether a fully implemented realist order could put an end to historical change. (shrink)

Everybody knows that the Revolution of 1911 was an anti-imperialist and antifeudal democratic revolution led by the revolutionary and democratic group of the bourgeoisie in the period of the old democratic revolution in China. The leader of that revolution was Sun Yat-sen, and the guiding ideology was his old Three People's Principles. It is well known that Chairman Mao has made a series of scientific appraisals of these facts, but the newspapers and magazines controlled by the anti-Party clique of Wang (...) Hung-wen, Chang Ch'un-ch'iao, Chiang Ch'ing and Yao Wen-yuan openly oppose Chairman Mao's scientific appraisals, betraying the fundamental principles of Marxism, distorting the Revolution of 1911 as a struggle between Confucians and Legalists, and replacing Sun Yat-sen as the standard-bearer of the revolution with Chang T'ai-yen, who played first an active and then a devastating role in the revolution. All this is part of the clique's attack on the Party in order to usurp the Party, seize power, restore capitalism and fabricate the "history" of the struggle between the Confucians and the Legalists. (shrink)

Throughout Chinese history, the Legalists and the Confucians have always been antagonistic schools of thought. The idea that the Legalists have their origins in the Confucians, that they are the successors of the Confucians, is nonsense. Explaining the problem and clarifying the class nature of the Confucian-Legalist struggle has important and real significance for deepening the Campaign to Criticize Lin Piao and Confucius, for criticizing the reactionary thought of honoring Confucius and opposing Legalism, and for grasping class struggle in the (...) realm of ideology. (shrink)

"Whenever one intends to overturn a political power, one must first create a general view and begin working from an ideological basis. The revolutionaries are like this. The counterrevolutionaries are also like this." [1] During the Spring and Autumn period and the Warring States period, the Legalists, who represented the newly rising landlord class, and the Confucianists, who represented the slave-owning class, engaged in an intense ideological struggle around the central issue of seizing or opposing the seizure of power, restoring (...) or opposing the restoration of the ancient ways. The field of the study of history, which is an organic part of ideology, became an important line of struggle for the Confucianists and the Legalists. (shrink)

Hsün Tzu was an eminent Legalist. The book Hsün Tzu fully reflects his Legalist thought. In the decisive period of great social change at the end of the Warring States period he stood in the front ranks of the age and created a great deal of public opinion in favor of the replacement of the slave system by the feudal system; he "disclosed the past, set forth the present, dispersed disorder, and propagated reason as easily as turning over his hand" (...) , creating a thick foundation of theory for the Legalist line and manifesting the vital and vigorous fighting spirit of the newly rising landlord class. (shrink)

. The article attempts to show the way in which the notions of “natural law” and “cosmic harmony” have been applied by Western scholars in the interpretation of traditional Chinese thinking about the role of law in society, the extent to which the Western interpretations can be supported by the Chinese sources, and , more specifically, the degree to which official Chinese thought subscribed to a correlation between the occurrence of natural disasters and acts of maladministration or injustice on the (...) part of the emperor and state. Generally it is argued that the extent to which Chinese statesmen and administrators actually believed that errors in the infliction of legal punishment or the sentencing of offenders would produce aberrant natural phenomena has been exaggerated by Western scholars. (shrink)

The concept of legitimacy is at the heart of the theory of power. It is essential to understand how a political power is built and how obedience is obtained among the population. We examine here the legitimacy of power for two of the most important political philosophies of classical China: Confucianism and Legalism. We show how a specific group of the population, the scholar-officials, play a specialised role in the two systems, acting as a legitimisation group. We further compare rites (...) and laws as a way to obtain social order, and morality vs punishments as a way to obtain obedience. We conclude that the Confucianist system is less fragile than the Legalist, but also more oppressive, since it allows fewer personal choices to individuals. (shrink)

Shang, Yang. The Book of Lord Shang. A Classic of the Chinese School of Law. Translated from the Chinese with Introduction and Notes by Dr. J.J.L. Duyvendak.

Wang, Xiaobo 王曉波, Dao and Fa: Explanation and Analysis of Legalist Thought and Huang-Lao Philosophy 道與法 : 法家思想和黃老哲學解析 Taipei 臺北: National Taiwan University Press 臺大出版中心, 2007, xiv+504 pages.

This paper argues that Han Fei provides us with a theory of punishment that needs not rely upon any sort of moral justification. Furthermore, feelings, including those of disgust, resentment, and anger, are completely irrelevant to the question of punishment. Rather, punishment is simply seen as a mechanistic tool that is employed when some aspect of the political system breaks down, such as when a minister’s proposals do not match their deeds or their deeds do not match their job description. (...) These ideas are quite closely tied to his views on desert, a concept of desert quite different from what we see in the West. Not only does his view lack certain elements that Western desert theorists such as Joel Feinberg consider essential to the very concept of desert, he is quite conscious of this lack and provides a defense of his view. In particular, he offers a conception of desert that does not require that it be conceptually and morally prior to social institutions. As such, Han Fei provides us with a unique lens through which to analyze punishment and its justification that is importantly different from either retributivist or consequentialist justifications. (shrink)

There is a wide array of contemporary arenas toward which the ideas of Han Fei may be directed. One of these is the arenas where Han Fei may potentially be of use is that of corporate and business ethics. Even if we disagree with Han Fei’s pessimistic assumptions about human dispositions and the plausibility of moral cultivation, we may find such a framework useful for analyzing how businesses, corporations, indeed any sort of bureaucracy can and should function. Milton Friedman was (...) of course famous for his claim that “there is one and only one social responsibility of business―to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game.” On this account, businesses not only do, but should act in a fashion which bears stark similarities to how Han Fei believes that human dispositions lead them to act at the individual level. He then draws a range of conclusions from this, and it is worth exploring the extent to which these conclusions are useful as we determine how to analyze, evaluate, organize, and limit corporate behavior. (shrink)

This paper focuses on an early Chinese conception of genealogical argumentation in the late Warring States text Han Feizi and a possible response it has to the problem of genealogical self-defeat as identified by Amia Srinivasan (2015)—i.e., the genealogist cannot seem to support their argument with premises their interlocutor or themselves can accept, given their own argument. The paper offers a reading of Han Fei’s genealogical method that traces back to the meditative practice of an earlier Daoist text the Zhuangzi (...) and its communicative strategy, offering a conception of genealogy aimed at undoing fixations on political systems in order to bring about a more adaptive state—specifically genealogy that does not require epistemological commitment to its premises. (shrink)