HAN FEI TZU AND CHINESE LEGALISM

EIGHTH IN A SERIES ON MARXISM AND CHINESE PHILOSOPHY

by Thomas Riggins

“Well, Karl, what do you know about the Legalists and Han Fei in particular?”

“I remember what Reese says in his dictionary. That he lived in the Third Century B.C., that he was the Prince of Han and committed suicide in 233 B.C. because the King of Ch’in woudn’t accept his services. He is the major philosopher in the Legalist School.”

“Pretty good. Chan calls this school the most radical of the schools for its rejection of Confucianism (morality) and Moism (religion). We have already talked about the Ch’in Dynasty (221-206 B.C.) and First Emperor. The dubious claim to fame of the Legalists is that they helped set up the ideological framework for the Ch’in. Han Fei was the most important of a line of Legalist philosophers. He also studied under Hsun Tzu and, unjustly I think some of his more ‘totalitarian’ tendencies have been read back into his teacher. Legalist predecessors were Kuan Chung (Seventh Century B.C.), Lord Shang, Prime Minister of Ch’in (Fourth Century B.C.), his contemporary, the Prime Minister of Han, Shen Pu-hai and ShenTao (c.350-275 B.C.). Chan notes that his fellow student with Hsun Tzu, Li Ssu, who died in 208 B.C. was behind the suicide of Han Fei. I can’t believe he killed himself just because he couldn’t get a job with the future First Emperor!.”

“That does seem strange. Here is some more info in Creel. It seems Li Ssu actually turned the King against Han Fei by telling him that he would not support Ch’in in a war against Han. Han Fei was tossed into prison and forced to kill himself by Li Ssu. That makes more sense.”

“It also makes Li Ssu a fake sage! That type of behavior seems completely against all the teachings of the philosophers we have so far discussed! Hsun Tzu would not have liked that at all. Why did he do it?”

“His motive makes it even worse. He new that Han Fei was a better philosopher than he and he was jealous that the King would prefer him. Li Ssu was already a minister in Ch’in when Han Fei came to offer his services.”

“So, are we ready to look at the Han Fei Tzu and see what this new philosophy was all about?”

“I’m ready, Fred.”

“Chan says Han Fei is most famous for his synthesis of Legalist views and for his discussion of the Tao which influenced all the Taoists of note. I will begin with Chan’s first selection ‘1. The Synthesis of Legalistic Doctrine.’ Han Fei starts by noting that Confucianism and Moism are the most popular philosophies and he attacks them for trying to pretend they represent the wisdom of the old sage kings. Han Fei is against using the past as a model for the present and future. He says, since no one can really tell what the the old sage-kings' true teachings were or how to apply them today, then, ‘To be sure of anything without corroborating evidence is stupidity, and to base one’s argument on anything about which one cannot be sure is perjury. Therefore those who openly base their arguments on the authority of the ancient kings and who are dogmatically certain of Yao and Shun are men either of stupidity or perjury.’ “

“Technically, while Mo may have mentioned Yao and Shun it was Wen and T’ang and Wu and Yu that he appeals to most of the time in the Chan extracts. But in principle Han Fei’s argument is against both Mo and Confucius.”

“This next quote shows that the Legalists were in favor a government of laws and not of men! ‘Although there is a naturally straight arrow or a naturally round piece of wood [once in a hundred generations] which does not depend oany straightening or bending, the skilled workman does not value it. Why? Because it is not just one person who wishes to ride and not just one shot that the archer wishes to shoot [so bending and straightening of wood is needed as a skill-tr]. Similarly, the enlightened ruler does not value people who are naturally good and who do not depend on reward and punishment. Why? Because the laws of the state must not be neglected and government is not for only one man. Therefore the ruler who has the technique does not follow the good that happens by chance but practices the way of necessity ....’ And Chan remarks, ‘In the necessity of straightening and bending, note the similarity to Hsun Tzu. The theory of the originally evil nature of man is a basic assumption of the Legalists.”

“I still say that Hsun Tzu was not like the Legalists. I pointed this out at the start of our discussion on the Hsun Tzu.”

“And I said I agreed with you. You will be happy to know that Chan also agrees with you and not with Fung who holds that Han Fei based his doctrines on those of Hsun Tzu.”

“Well, I like that! Just what does old Chan have to say about this issue Fred?”

“He says the bending and straightening in Hsun Tzu meant education and the like, but Han Fei only relied on rewards and punishments. Chan said, ‘Hsun Tzu had a firm faith in man’s moral reform but the Legalists have no such faith.’ And, he adds, ‘It is misleading, at least, to say, as Fung does, that Han Fei Tzu based his doctrines on the teachings of Hsun Tzu.’ This is because they ‘were utterly different in their attitudes toward man as a moral being.’”

“I’ll buy that. So, lets go on with some more of the Han Fei Tzu.”

“Sure. Han Fei Tzu says the enlightened ruler needs four things to ensure his success. Namely, the ‘timeliness of the seasons,’ the support of the people, ‘skills and talents,’ and finally a position of power. He says, ‘Acting against the sentiment of the people, even Meng Pen and Hsia Yu (famous men of great strength) could not make them exhaust their efforts. Therefore with timeliness of the seasons the grains will grow of themselves.’ In fact with all four conditions, then, ‘Like water flowing and like a boat floating, the ruler follows the course of Nature and enforces an infinite number of commands. Therefore he is called an enlightened ruler....’”

“Sounds like Taoism.”

“You couldn’t be more right Karl. Chan’s comment on that quote I just gave is, ‘Of all the ideas of the Legalists, perhaps the most philosophical is that of following Nature, which was derived from the Taoists.’ And, although he did not include it in his Source Book, Chan says that one of the chapters in the Han Fei Tzu is a commentary on the thought of Lao Tzu.”

“That’s excellent. Does he get more specific about law?”

“Try this. The important thing for the ruler is either laws or statecraft. A law is that which is enacted into the statute books, kept in government offices, and proclaimed to the people. Statecraft is that which is harbored in the ruler’s own mind so as to fit all situations and control all ministers. Therefore for law there is nothing better than publicity, whereas in statecraft, secrecy is desired....’”

“Sounds a little like Machiavelli.”

“He goes on, ‘Ministers are afraid of execution and punishment but look upon congratulations and rewards as advantages. Therefore, if a ruler himself applies punishment and kindness, all ministers will fear his power and turn to the advantages.’”

“Yes, I remember this. The ‘two handles’ of government--reward and punishment. Machiavelli says a prince is better off being feared than loved, and I see that Han Fei also goes in for the fear factor.”

“Yes he does. A minister gets punished if he does something small after having said he would do something big, but also if he expects to do something small and it turns out to be big. Han Fei says, ‘It is not that the ruler is not pleased with the big accomplishments but he considers the failure of the big accomplishments to correspond to the words worse than the big accomplishments themselves. Therefore he is to be punished....’”

“That certainly won’t encourage ministers to surpass themselves! That seems counter-productive. I understand your being punished for big talk and little deeds, but if you set to do only a little yet accomplish something big despite yourself, I think it is not wise for the ruler to punish you. Suppose you said you would delay the enemy while the ruler collects his forces and instead you are able to defeat the enemy. What is the sense of being punished?”

“I agree with you Karl but that is the way Legalists play the game. Here is what Chan says about it. ‘Like practically all ancient Chinese schools, the Legalists emphasized the theory of the correspondence of names and actualities. But while the Confucianists stressed the the ethical and social meaning of the theory and the Logicians stressed the logical aspect, the Legalists were interested in it primarily for the purpose of political control. With them the theory is neither ethical not logical but a technique for regimentation.’”

“Well that it is, but it will not really work in the interests of the ruler. In fact the Ch’in Legalist state fell apart shortly after the death of the First Emperor. Don’t forget that Han Fei had to commit suicide, a victim perhaps of his own Machiavellian position.”

“Here is a big attack on the Confucianists.”

“This should be good!”

“This attack is also directed at Mo Tzu so his doctrines were still around. ‘At present Confucianists and Moists all praise ancient kings for their universal love for the whole world, which means that they regarded the people as parents [regard their children].... Now, to hold that rulers and ministers act towards each other like father and son and consequently there will necessarily be orderly government, is to imply that there are no disorderly fathers or sons. According to human nature, none are more affectionate than parents who love all children, and yet not all children are necessarily orderly.’”

“So here come the ‘two handles’.”

“It seems to be the case Karl. Han Fei says that you have to have laws against the disorderly people in the state. He makes the point that ‘people are submissive to power and few of them can be influenced by the doctrines of righteousness.’”

“That’s the case in empirical states that haven’t been designed to conform to Confucian ideals. Why should we limit ourselves to these kinds of state?”

“Because that is being realistic. Look, Han Fei says, at what happened to Confucius in the real world. In the real world ‘Duke Ai of Lu was an inferior ruler. When he sat on the throne as the sovereign of the state, none within the borders of the state dared refuse to submit. For people are originally submissive to power and it is truly easy to subdue people with power. Therefore Confucius turned out to be a subordinate and Duke Ai, contrary to one’s expectation, became a ruler. Confucius was not influenced by Duke Ai’s righteousness; instead, he submitted to his power. Therefore on the basis of righteousness, Confucius would not submit to Duke Ai, but because of the manipulation of power, Confucius became a subordinate to him. Nowadays in trying to persuade rulers, scholars do not advocate the use of power which is sure to win, but say that if one is devoted to the practice of humanity and righteousness, one will become a true king.’”

“Just the view of Plato as well as Alfarabi. But you don’t have to tell me that Han Fei thinks that that is bunk.”

“With a vengeance! It looks to me that he wouldn’t support any of the Confucian policies and would rather see a big military state--Sparta rather than Athens! He says, ‘The state supports scholars and knights-errant in times of peace, but when an emergency arises it has to use soldiers. Thus those who have been benefited by the government cannot be used by it and those used by it have not been benefited.’”

“It does look look like a professional army would fulfill his ideas. But, that type of army is parasitical in times of peace and it makes oppression by the government so much the easier. I presume his reference to ‘knights-errant’ is a swipe at the Moists.”

“Here are some more of his ideas, ‘If in governmental measures one neglects ordinary affairs of the people and what even the simple folks can understand, but admires the doctrines of the highest wisdom, that would be contrary to the way of orderly government. Therefore subtle and unfathomable doctrines are no business of the people.... Therefore the way of the enlightened ruler is to unify all laws but not to seek for wise men and firmly to adhere to statecraft but not to admire faithful persons. Thus laws will never fail and no officials will ever commit treachery or de-
ception.’”

“You know Fred, I don’t think that this is an either/or type of situation. I’m sure the Confucians would also agree that the people should not be left out of consideration. They always advocated education. That doesn’t mean that just because you have the elementary schools you have to abandon the university--which is what Han Fei seems to be saying. His emphasis on ‘statecraft’--the secret machinations of the ruler’s brain seems to conflict with his confidence in the ‘laws’ and introduces arbitrariness into the system. As for officials never committing treachery or deception--look what happened to him. Either Li Ssu, a Legalist himself, committed treachery or Han Fei was engaged in deception and the future First Emperor was right to imprison him. But the consensus is that Han Fei was innocent, Therefore he was the victim of ‘statecraft’ and in this instance the laws failed. I think it was this contradiction in his system that led to its untenability in the long run and why Confucianism, which is more balanced and nuanced, somewhat succeeded. I would also like to point out that his stress on the ‘common people’ is probably due to the influence of Taoism and this influence is also the reason he failed to integrate popular education and ‘the doctrines of the highest wisdom.’ For him these doctrines didn’t exist in the Confucian or Moist sense.”

“I think you are right Karl. These next words have a real Taoist flavor. He says, ‘In regard to the words [of traveling scholars], rulers of today like their arguments but do not find out if they correspond to the facts. In regard to the application of these words to practice, they praise their fame but do not demand accomplishment. Therefore there are many in the world whose talks are devoted to argumentation and who are not thorough when it comes to practical utility.... In their deeds scholars struggle for eminence but their is nothing in them that is suitable for real accomplishment. Therefore wise scholars withdraw to caves and decline the offering of positions.’”

“Very Taoist! Too bad Han Fei did not take his own advice. If he had gone to live in a cave somewhere instead of going off to take a position in Ch’in, and struggling for eminence with Li Ssu, he would not have ended up having to commit suicide.”

“Here is the last quote from this section of Chan. ‘Therefore in the state of the enlightened ruler, there is no literature of books and records but the laws serve as the teaching. There are no sayings of ancient kings but the officials act as teachers. And there are no rash acts of the assassin; instead, courage will be demonstrated by those who decapitate the enemy [in battle]. Consequently, among the people within the borders of the state, whoever talks must follow the law, who ever acts must aim at accomplishment, and whoever shows courage must do so entirely in the army. Thus the state will be rich when at peace and the army will be strong when things happen.’”

“Wow! This is no good. ‘No literature of books’--this will result in a violation of the Prime Directive as the only views available will be Legalist and thus authority rather than reason will end up ruling people’s minds.”

“Chan says, ‘The advocation of prohibiting the propagation of private doctrines eventually led to the Burning of Books in 213 B.C. and in the periodic prohibitions of the propagation of personal doctrines throughout Chinese history.’”

“Chan wrote that before the ‘Cultural Revolution’, which was neither ‘cultural’ nor a ‘revolution,’ so we can see the bad effects of this doctrine are still alive. Not allowing ‘personal doctrines’ means only state sanctioned ‘truth’ is allowed, a sure condition for ending up as far away from being able to find ‘truth’ as you can imagine. I hate to seem critical of the Chinese government, especially as it has raised the Chinese people out of feudal despair and into the modern world, but they should heed Carl Sagan’s advice that ‘The cure for a fallacious argument is a better argument, not the suppression of ideas.’” I’m not singling out China. Every government in the world could do better in this respect.”

“Well put Karl, but now I’m going to go over the other section that Chan has in his Source Book, namely Han Fei’s discussion of Taoism, which Chan calls ‘one of the most important.’ Chan calls this section ‘Interpretations of Tao.’ Are you ready for this?”

“Ready!”

“OK, here goes, ‘Tao is that by which all things become what they are. It is that with which all principles are commensurable. Principles are patterns (wen) according to which all things come into being, and Tao is the cause of their being. Therefore it is said that Tao puts things in order (li). Things have their respective principles and cannot interfere with each other, therefore principles are controlling factors in things. Everything has its own principle different from that of others, and Tao is commensurate with all of them [as one]. Consequently, everything has to go through the process of transformation. Since everything has to go through the process of transformation, it has no fixed mode of life. As it has no fixed mode of life, its life and death depend on the endowment of material force (ch’i) [by Tao]. Countless wisdom depends on it for consideration. And the rise and fall of all things is because of it. Heaven obtains it and therefore becomes high. The earth obtains it and therefore can hold everything....’”

“He seems to be following Lao Tzu fairly closely.”

“Yes indeed, as the following shows as well. ‘Whatever people use for imagining the real [as the skeleton to image the elephant] is called form (hsiang). Although Tao cannot be heard or seen, the sage decides and sees its features on the basis of its effects. Therefore it is called [in the Lao Tzu] “shape without shape and form without objects.”’”

“Sort of like ‘Gravity” with Newton. It couldn’t be seen or heard but the effects, as with the falling apple, led Newton to work out its features. The great law that controls everything, like Gravity, that is the Tao.”

“Han Fei goes on. ‘ In all cases principle is that which distinguishes the square from the round, the short from the long, the course from the refined, and the hard from the brittle. Consequently, it is only after principles become definite that Tao can be realized.’”

“But Tao is the basis of principle! To keep my Newton analogy going, I would have to say that it is only when objects are manifesting their attraction that Gravity can be realized.”

“It is the ‘eternal’ Tao that Han Fei is interested in. He says, ‘Only that which exists from the very beginning of the universe and neither dies nor declines until heaven and earth disintegrate can be called eternal. What is eternal has neither change nor any definite particular principle itself. Since it has no definite particular principle itself, it is not bound in any particular locality. This is why [it is said in the Lao Tzu] that it cannot be told. The sage sees its profound vacuity (hsü) and utilizes its operation everywhere. He is forced to give it the name Tao. Only then can it be talked about. Therefore it is said, “The Tao that can be told of is not the eternal Tao.”’”

“Does Chan say why this is ‘most important’?”

“Yes he does. He goes into this passage with a long comment. ‘This is one of the earliest and most important discussions of Tao. It is of great importance for two reasons. First, principle (li) has been the central concept in Chinese philosophy for the last eight hundred years, and Han Fei was one of the earliest to employ the concept. Secondly, to him Tao is not an undifferentiated continuum in which all distinctions disappear. On the contrary, Tao is the very reason why things are specific and determinate. This is a radical advance and anticipated the growth of Neo- Taoism along this direction in the third and fourth centuries A.D.’”

“That completes our treatment of Han Fei?”

“Yes, Karl, it does. Who or what should we tackle next?”

“I want us to discuss a little classic called the Great Learning. It is one of the ‘Four Books” along with the Analects, Mencius, and the Doctrine of the Mean that all Chinese had to read and study, especially those taking the exams for government service. It is there in Chan Fred. Look it over and we will discuss it next.”

“OK, I 'llcome over after breakfast tomorrow and we will begin.”

“See you then!”