Legalism (Chinese philosophy)

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Legalism
Statue of the legalist Shang Yang
Chinese法家
Literal meaningSchool of law

Fajia (Chinese: 法家; pinyin: fǎjiā), often translated as Legalism,[1] was a school of thought derived of classical Chinese philosophy. It represents several branches of thought of early thinkers mainly from the Warring States period, such as Guan Zhong, Li Kui, Shen Buhai, Shang Yang, Shen Dao, and Han Fei, whose reform ideas contributed greatly to the establishment of the bureaucratic Chinese empire. With an influence in the Qin, it formed into a school of thought in the Han dynasty. The Qin to Tang were more characterized by its tradition.

Though the origins of the Chinese administrative system cannot be traced to any one person, prime minister Shen Buhai may have had more influence than any other for the construction of the merit system, and could be considered its founder. His philosophical successor Han Fei, regarded as their finest writer, wrote the most acclaimed of their texts, the Han Feizi, containing some the earliest commentaries on the Daodejing. Sun Tzu's Art of War recommends Han Fei's concepts of power, technique, inaction, impartiality, punishment and reward.

Concerned largely with administrative and sociopolitical innovation, Shang Yang's reforms transformed the peripheral Qin state into a militarily powerful and strongly centralized kingdom, mobilizing the Qin to ultimate conquest of the other states of China in 221 BCE. With an administrative influence for the Qin dynasty, he had a formative influence for Chinese law. Succeeding emperors and reformers often followed the templates set by Han Fei, Shen Buhai and Shang Yang.

Early daoistic realism[edit]

Mohism contains the early analytical elements of those later termed Fajia "Legalists", as well as the school of names "sophists" or "logicians" as sharing in similar administrative practices,[2] but with bureaucratic advancement more obvious in Shen Buhai and Han Fei.[3][4] Those later termed Legalists can roughly be explained as originating in the reforms of Warring States period mobilizations.[5] With a lasting contribution to the organization of the bureaucracy, and advising techniques to prepare the ruler for military conquest, it can be characterized as an almost purely administrative realism, as critiqued by the Han Feizi.[6]

The Warring States period knew of no Legalists or Daoists as such. Prior Sima Qian, doctrines were identified only by teachers; for those later termed Daoists, namely Laozi and Zhuangzi as loose networks of textual traditions brought together more fully in the Han dynasty, not prior forming a school in the sense of the Mohists and Confucians.[7] With Sima Qian and Han Fei distinguishing between Shang Yang and the others,[8] the primary figures later termed Legalists may be characterized as early Daoistic thinkers, becoming a tradition or way of organizational thought based in the administrative power of the ruler, with differences to later Daoism.[9]

Placing Han Fei and Shen Buhai alongside Laozi, Sima Qian claims Han Fei, Shen Buhai and Shen Dao as having studied his same Huang-Lao ideology, characterizing what he dubs the Daojia or Dao-school by the administrative method of Shen Buhai and Han Fei. Termed Xing-Ming, it functions as an assembly of ministers contracted by a preferably inactive ruler.[10][11] Two hundred years into the Han dynasty, Liu Xiang could still distinguish between Shang Yang, associated with penal law, and Shen Buhai, taken as advocating administrative technique, supervision and accountability to abolish the punishment of ministers.[12]

Said to have been a Daoist, but potentially earlier, Shen Buhai's Dao or Way refers only to administrative methods (fa). His early, more Confucian concept of Wu wei advocates reduced activity by a completely impartial ruler, leaving duties to ministers. Hiding his power and wit, Shen Buhai's Wu wei teaches the ruler not to engage in actions that might harm the 'natural order of things'.[13] With a context spanning the Mozi to Huainanzi,[14] in opposition to the ministers Han Fei promotes a doctrine of ascetic self-interest to the ruler, comparable to later Huang-Lao works, teaching wu wei as emptiness and tranquility. Hidden and inactive, he responds to active ministers and affairs rather than acting himself. Han Fei's eclectic Way of the Ruler (Chapter 5) includes the ways of Laozi and Shen Buhai, but emphasizes Shen Buhai, with advice to the ruler to reduce his expressions, desires and traditional wisdom.[15]

An interpretation of the Daodejing (Laozi) as simply cynically political would be flawed. Still, together with qigong, it can be viewed as a manual for politics and military strategy, and it was difficult in early scholarship to differentiate Han Fei from Daoism. The Laozi of the Mawangdui Silk Texts, and two of the three earlier Guodian Chu Slips, place political commentaries, or "ruling the state", first. Emphasizing governmental usages, together especially with the early Daodejing, Shen Buhai, Han Fei, and Huang-Lao Daoism emphasize the political advantages of wu wei ("effortless action") 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.[16]

With a potential influence for Daoism, the Outer Zhuangzi lists the Mohists and Shen Dao as preceding Zhuang Zhou and Laozi.[17] Shen Dao was early remembered for his secondary subject of shi or "situational authority", of which he is spoken in Chapter 40 of the Han Feizi and incorporated into The Art of War, but only uses the term twice in the his fragments.[18] Xun Kuang takes him as teaching passivity and the elimination of desire,[19] calling him "beclouded with fa (administrative standards)", which is prominent in his work as shared with the others.[20] Although evidentially known in his time, he is only mentioned in the Shiji in a stub with other scholars of the Jixia Academy, like Xun Kuang and Mencius.[21][22] Sinologist Herrlee G. Creel found no following for him comparable to Shang Yang or Shen Buhai in the Warring States period or Han dynasty.[23]

Han Fei's late Daodejing commentaries are comparable with the Huang-Lao of the Guanzi Neiye,[24] but otherwise utilizes the Laozi more as a theme for methods of rule. Although he has Daoistic conceptions of objective viewpoints, he lacks a conclusive belief in their universal moralities and natural laws,[25] essentially sharing with Shang Yang and Shen Dao a view of man as self-interested.[26] 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 Han Fei's contractual administration.[27] His current is opposed with later Daoism as a practical state philosophy, not accepting a 'permanent way of statecraft', and applying the practice of wu wei or non-action more to the ruler than anyone else.[28]

Yet, their work's early commentators likely could not tell the difference between their current and the Daoists.[24] Modern Chinese literature can still be seen to regard Shen Buhai, Shen Dao and Han Fei as Huang-Lao Daoist influenced, as termed by Sima Qian.[29] Although modernly its category has generally been taken as imposed backwards,[30] as compared with the Mawangdui Silk Texts, its claims are not without merit.[31]

Changing with the times[edit]

Generalized as a commonality, what the Stanford Encyclopedia of Philosophy terms an evolutionary view of history has been associated more particularly with Gongsun Yang and Han Fei. 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, with history as a process contrasting with the beliefs of Ancient China.[32]

In what A.C. Graham takes to be a "highly literary fiction", the Book of Lord Shang 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 compares 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 text 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 considers the customs current at the time as having no significance to the statesmen, even if they may be willing to conform the government to them.[33]

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, and 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:[34]

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.

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.[35]

As a counterpoint, Han Fei and Shen Dao do still employ argumentative reference to 'sage kings'; Han Fei claims the distinction between the ruler's interests and private interests are said to date back to Cangjie, while government by Fa (standards) is said to date back to time immemorial. Han Fei considers the demarcation between public and private a "key element" in the "enlightened governance" of the purported former kings.[36]

Administrative focus[edit]

Containing the first direct reference to the writings of the Book of Lord Shang, the combination of Shang Yang and Shen Buhai can first be seen in the Han Feizi, and is essentially attributable for their later Han dynasty categorization together under the 'fa school of thought' (Fajia) as 'Legalists'.[37] Han Fei presents Shen Buhai and Shang Yang as opposite components in his doctrine in chapter 43 of his named text. Han Fei takes Shen Buhai as focused on the use of fa (standards) in the administration, termed (shu) administrative Method or Technique, concerned with holding power, selecting ministers, and overseeing performance. He presents Shang Yang as focused on fa "standards" as including law (though his program was broader[38]); Han Fei considers both necessary.[39][40]

According to Han Fei, Shen Buhai had disorganized law;[41] in contrast to Shang Yang, no text discussing him by himself identifies him with penal law, but only with control of the bureaucracy. He is glossed under penal law in the Han dynasty when he is paired with Shang Yang.[12] While the term Legalism has still seen some conventional usage in recent years, such as in Adventures in Chinese Realism, academia has otherwise avoided it for reasons which date back to Sinologist Herrlee G. Creel's early work on the subject. As Han Fei presents, while Shang Yang most commonly has fa (standards) as law, Shen Buhai uses fa (standards) in the administration, which Creel translated as method.[42][43]

More broadly, together with Shen Buhai and Shen Dao, Han Fei was still primarily administrative. Han Fei and Shen Dao make some use of fa akin to law, and some use of reward and punishment, but generally use fa similarly to Shen Buhai: as an administrative technique.[42] Shen Buhai compares official's duties and performances, and Han Fei often uses fa in this sense, with a particular quotation from the Han Feizi as example:[44]

An enlightened ruler employs fa to pick his men; he does not select them himself. He employs fa 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.

Blaming Shang Yang for too much reliance on law, Han Fei critiques him in much the same way as the Confucians, who held that laws cannot practice themselves. Han Fei says: "Although the laws were rigorously implemented by the officials, the ruler at the apex lacked methods." Han Fei's solution for unifying the various teachings of his forebears, including Confucianism and Mohism, is almost totally administrative, based in the ruler's power and methods.[45][46]

Han Fei'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 mainly be compared to a rule of law insomuch as it serves purposes beyond simply that of the ruler, operating separately from him. 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.[47]

Shen Dao similarly uses fa (objective standards) as an administrative technique for determining reward and punishment in accordance with merit,[48] and Shang Yang himself addressed many administrative questions, including an agricultural mobilization, collective responsibility, and statist meritocracy. But Shang Yang himself addresses statutes mainly from an administrative standpoint.[49]

Eradicating punishments[edit]

Yuri Pines takes the work's final chapter 26 as reflecting administrative realities of the 'late preimperial and Imperial Qin', essentially congruous with knowledge of the Qin. Although seeking governance more broadly, protecting the people from abuse by ministers becomes more important than punishing the people. Taken as universally beneficial, in an attempt to deliver the "blessed eradication of punishments through punishments", clear laws are promulgated and taught that the people can also use against the ministers. Han Fei advocates the same, but is more focused on accomplishing it through the administrative power of the ruler.[50]

If it's portion of the Han Feizi is dated to it's period, the Shangjunshu could have circulated on the eve of unification. Recalling it's earlier Chapter 4, as the work's first reference, Han Fei says:[51]

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'.

The Shangjunshu's Chapter 25's so-called "Attention to law" advocates "strict reliance on law" (fa) mainly as "norms of promotion and demotion" to judge officials and thwart ministerial cliques, but falls back on agriculture and war as the standard for promotion.[52] For Han Fei, the power structure is unable to bare an autonomous ministerial practice of reward and punishment. Han Fei mainly targets ministerial infringements. His main argument for punishment by law, 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. Han Fei's ruler abandons personal preferences in reward and punishment in favor of fa standards out of self-preservation.[53]

However, 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.[54] Han Fei does not care about retribution or punishment itself, and he does not suggest kinds of punishments. 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. In contrast to Shang Yang, Han Fei places a more equal emphasis on reward to encourage people and produce good results; he does not believe the government can be established on Shang Yang's basics of punishment.[55] Although to some extent opposed to the philosophical debates of the earlier school of names 'sophists', otherwise devoted to the use of writing in administration, punishment for Han Fei was still secondary to simply controlling ministers through techniques, in particular simply through written agreements.[56][57]

The Qin dynasty[edit]

Although seeming to support totalitarianism, Han Fei and Shang Yang do not supply alternate totalitarian ideologies or thought control. Han Fei opposes the "discourses of the former kings", but does not reject that they may be of benefit. He demands it's proponents enter into state service as law teachers.[58][59] The Qin dynasty does not target Confucians in government service, who actually prosper; if Sima Qian can be taken as any suitable commentary, it persecutes independent intellectuals after unification in a flurry of demand for government service; or literally Han Fei, "turn officials into (law) teachers".

Neither Qin nor Han Fei have concern for doctrinal unity, and Qin's control, censure and imposition on intellectual life has no concern for ideas or their contents.[21][58] Provided they are of benefit, Han Fei only cares that the proponents of various teachings join (rather than externally oppose) the perennially teetering Warring States government, suggest programs, teach laws, and mobilize men for war. As with other high ministers of his period, Han Fei is more concerned with recruiting and managing ministers than anything else. Suggesting broad programs, few legal rules are found in any writings later taken as Legalist. Han Fei cares that they more reliable, transparent and understandable than the morality of ministers and rulers.[58][60][61]

The Qin took a congratulatory attitude towards laws and measures on their success, and the stele of the First Emperor promote his own consolidated model of governance as a permanent establishment for the ages. But the Han Feizi has a 'changing with the times' paradigm, only considering it a matter of necessity that rule by virtue could no longer be relied upon. Abstractly advocating laws, measures and punishments, although Han Fei does not much suppose that the need for punishments will disappear, the Han Feizi's main argument for them are that they are the government for his time. The texts later called 'Legalist' were mainly concerned with putting an end to the chaos of the Warring States period.[62][58]

Their texts were not entirely successful, in their own time, in advocating for laws, bureaucracy, and punishment. The Shangjunshu has a text with positive ideas about what an order based on laws and bureaucracy would look like, but less idea of how to get there, so that in its own time it was largely theoretical. The Han Feizi's proposition to control ministers with laws and punishments was still largely theoretical. A couple of its late Daoist chapters take on a metaphysical character in an attempt to legitimize fa laws and methods.[63]

Qin law includes such advanced concepts as intent, judicial procedure, defendant rights, retrial requests and distinctions between different kinds of law (common law and statutory law).[64] But its penal law was only included alongside li ritual. While some Qin penal laws deal with infanticide or other unsanctioned harm of children, it primarily concerned theft; it does not much deal with murder, as either more straightforward or more suitable to li ritual. By contrast, detailed rules and "endless paperwork" tightly regulate grain, weights, measures, and official documents.[65][66]

Even if the Shangjunshu only passingly suggests that the need for punishment would pass away, and a more moral driven order evolve, the Qin nonetheless abandoned Shang Yang's heavy punishments before the founding of the Qin dynasty.[58] As a component of general colonization, the most common heavy punishment was expulsion to the new colonies, with exile considered a heavy punishment in ancient China. 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 an expeditionary army. The Qin have mutilating punishments like nose cutting, but with tattooing as most common, with shame is its own heavy punishment in ancient China. They are not harsher for their time, and form a continuity with the early Han dynasty,[67] abolishing mutilations in 167 BC.[66][68]

Punishments in the Qin and early Han were commonly pardoned or redeemed in exchange for fines, labor or one to several aristocratic ranks, even up to the death penalty. Not the most common punishments, the Qin's mutilating punishment likely exist in part to create labor in agriculture, husbandry, workshops, and wall building.[69] Replacing mutilation, labor from one to five years becomes the common heavy punishment in early Imperial China, generally in building roads and canals.[70]

Justice[edit]

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.[58] Michael Loewe regarded still 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.[60][58]

Sima Qian argues the Qin dynasty, relying on rigorous laws, as nonetheless still insufficiently rigorous for a completely consistent practice, suggesting them as not having always delivered justice as others understood it.[71] Still, 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 of justice.[72][73]

Inasmuch as Han Fei has modernly been related to 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":[74]

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.

Names and realities[edit]

Sima Qian divided the schools (or categories) along elemental lines, as including Ming ("names" categories in the administration including contracts) for the Mingjia School of Names, and fa (standards in the administration including law and method) for the Fajia ("Legalists").[75] 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).Both posthumous groupings have both elements, and share the same concerns, evaluating bureaucratic performance and examining the structural relationship between ministers and supervisors.[76]

The school of names mingjia could also be translated as Legalists if either category had existed in the Warring States period, and would be more or less equally accurate and inaccurate.[77] The school of names used fa (comparative models) for litigation,[78] while the Qin dynasty made a more restrictive use of comparative model manuals to guide penal legal procedure, but still included such advanced concepts as intent, judicial procedure, defendant rights, and retrial requests.[79] The Zhuangzi slanders those who place the practice of Xingming and rewards and punishments over wu-wei as sophists and "mere technicians";[80] the Han dynasty term Mingjia (school of names) is applied to administrators earlier termed by the Zhuangzi as debaters (sophists).[75]

The term Fajia is applied to administrators discredited by later Han dynasty Confucians, in posthumous association with the Li Si, Qinshihuang, and the old harsh penal laws of Shang Yang. It includes people like Shen Buhai who were received as advising the use of administrative technique and supervision to abolish punishment. Emperors like Wen who practiced Xingming, and Han dynasty governors who had been students of Li Si, were earlier famous for their clemency and the reduction of capital punishment.[81]

Words and names are essential to administration, and discussion of names and realities were common to all schools in the classical period (500bce-150bce), as including the Mohists and posthumous categories of Daoists and Legalists. It's earlier thinking was actually most developed by the Confucians, while later thinking was characterized by paradoxes and, in Daoism, an even higher degree of relativism. Although less Confucian, Han Fei can still be compared with the earlier Confucian rectification of names, together with Shen Buhai and Xun Kuang.[82]

Xingming[edit]

Shang Yang can be considered pioneering in the advancement of fa (standards) as law and governmental program more generally,[83] but his early administrative method more simply connects names with benefits like profit and fame, to try to convince people to pursue benefits in the interest of the state.[84] Its more advanced discussions date to the later Warring States period, after Shang Yang, Shen Buhai, and Mencius.[85]

Han Fei's his late tradition develops its own unique names and realities (mingshi) method, under the term Xing-Ming. Naming individuals to their roles as ministers (e.g. "Steward of Cloaks"), in contrast to the earlier Confucians, Han Fei's Xing-Ming holds ministers accountable for their proposals, actions and performance. Their direct connection as an administrative function cannot be seen before Han Fei;[86] the late Warring States theories of Xun Kuang and the Mohists were still far more generalized.[87] Sima Tan proclaims the Daojia or "dao school" as adopting "the essentials of ming and fa".[75]

The term Xingming likely originates in 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.'" Nonetheless, Suqin took Gongsun Long's white horse paradox to be a Xingming administrative strategy.[88] Despite opposition, 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.[89]

An early bureaucratic pioneer, Shen Buhai was not so much more advanced as he was more focused on bureaucracy. Nonetheless, he can be taken as of the originator of the "Legalist doctrine of names" as understood by the later Han dynasty, which Han Fei terms Method or Technique (Shu). Han Fei says: "Method is to confer office in accordance with a candidate's capabilities; to hold achievement accountable to claim; and to examine the ability of the assembled ministers. This is controlled by the ruler."

Shen Buhai uses the earlier school of names method-term, mingshi, name and reality. Although Xing-Ming is Han Fei's, Shen Buhai's doctrine becomes known as Xing-Ming. In the Han Dynasty, secretaries of government who had charge of the records of decisions in criminal matters would be termed Xing-Ming, which Sima Qian and Liu Xiang attribute back to the doctrine of Shen Buhai, described as holding holding outcome accountable to claim.[88]

Categorization as Legalist[edit]

The early reforms of Zichan concerned the Jin that law would destroy the social order and even the state,[90] while Shang Yang's consistent application of punishments, extending even to the tutor of the prince, led to his downfall.[91] Considering the Qin remote in the Spring and Autumn period, central China in the Warring States period saw the Qin state as barbarian, writing little about it.[92][93] With the Wei state's Li Kui and Wu Qi taken as predecessors,[94] Li Kui could theoretically have influenced Shen Buhai as mutually seeking meritocratic government, but Wei itself was a marginalized state of little interest to Warring States contemporaries.[95][96] If Shang Yang's tradition was even much known before the Qin dynasty,[97] as a late figure, Xun Kuang knew about Shen Buhai and Shen Dao, but still did not appear to know about Shang Yang.[98]

The fa school's various thinkers and statesmen had influences for the Warring States, Qin, Han and later dynasties. But no one ever called himself a Fajia Legalist,[99] its category is not indicated pre-Han,[100] and they were probably never an organized school in the sense of the Confucians or Mohists; their posthumous categorization itself divides them from other thinkers with shared administrative practices, like the school of names.[101] Prior Han Fei, and later categorization as Fajia or Legalist, they only appear to have been known as individuals in connection with older ideologies.[102]

Sima Tan and Sima Qian (145–c.86 BC) invented Fajia or "Legalism" in the Records of the Grand Historian as a "taxonomical category", or abstract school of thought, rather than a group of people or historical category. They originally defined it more in terms of office divisions and responsibilities, but as "strict and with little kindness".[103] They do not name anyone under the categories, and likely did not intend Han Fei's figures for it.[104] A political document aiming to demonstrate his own early Daoistic Huang-Lao ideology as best,[105] Sima Qian claims that Han Fei, Shen Buhai, and Shen Dao had studied it as a teaching based in Yellow Emperor,[106] including a chapter on the "Biographies of Laozi and Han Fei" that includes Shen Buhai; Shang Yang is simply given his own chapter.[107]

Combinations of Shen Buhai, Shang Yang and Han Fei became common starting in early Han dynasty literature, including the Huang-Lao Huainanzi.[58][108] Its author would be suppressed together with the Huang-Lao faction by other likely Han Feizi students, the Shang-Yangian Emperor Wu of Han, Gongsun Hong and Zhang Tang as opposed by Sima Qian. Under Confucian factional pressure, Emperor Wu discriminated against students of Shang Yang, Shen Buhai and Han Fei in favor of the Confucians. When older, those officials who praised Shang Yang and Li Si and denounced Confucius were upheld. The ministerial examination system would be instituted through the likely influence of Shen Buhai and Han Fei.[109] With Han Confucianism ultimately opposing a Shang Yangian Legalism, the ministerial regulations of Shen Buhai, as well as a contrasting Daoism, a confused revulsion against the Qin dynasty and old harsh laws of Shang Yang, abandoned before its founding, develops over the course of the Han dynasty.[110]

Saying that "if the family was rich they sent them out as separate households" Jia Yi promotes the Shangjunshu's reforms as attacking kin ties and promoting greed. With the Han adopting Qin administration, Jia Yi villainizes the First Emperor as arrogant and inflexible, but mainly blames the second emperor, further developing the mythos of cruel Qin dynasty laws.[111] Confucian archivists Liu Xiang (77–6BCE) and Liu Xin (c.46bce–23ce) appropriate Fajia, assigning it a fictional origin in an ancient department of criminal justice or "chief of prisons" for their imperial library classification system, together with departments for the other schools.[112][58] The Book of Han lists the 'school of fa' or so-called department of prisons as a category of Masters Texts, as one of ten such categories,[113] prominently listing Han Fei and other main figures of the Han Feizi's later chapters, Shen Buhai, Shang Yang and Shen Dao.[114][115]

References[edit]

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