The Internal Morality of Chinese Legalism-Classical Chinese Politics--新法家

The Chinese Legalist tradition holds that from the Dao (the Way of the universe) comes the law and from the law comes virtue, while in the West there has been the idea of “the natural law” as opposed to the positive law. The Dao and the Western “natural law” are not the same thing, though seemingly so, -- there are at least two major differences between them:

A) The Western and Chinese views of what is “natural”, or the natural order, are basically different: The former is mechanically atomistic: either “all men [individuals] are equal before God” or “war of every man [individual] against every man [individual]” – actually neither is true to life; whereas the latter is organically holistic: “All things carry the opposites Yin and Yang, approaching harmony through moderation.” (Dao De Jing, Chapter 42) That means: everything, including human individuals and social groups of all kinds, sizes and levels (the same below), are both related to everything else as a whole (Yin) and relatively self-contained in a way (Yang), going from continually emerging imbalances towards relative balances internally and externally through dynamic interactions between all things on all levels of existence all the time. This is the Way, the Dao, of the universe, including the human society. Therefore, the function of law should be to “guide [changes] towards balance” (“应化之道，平衡而止。” The Yellow Emperor’s Four Canons, 1: The Dao and the Law（黄帝四经1: 道法）) And to follow the Dao and a law in line with the Dao is the greatest of virtue.

B) In Western thought, the relations between the natural law, human-made laws and morality have not been clearly and consistently spelled out and it seems to be generally thought that the natural law functions through the medium of the moral principles contained in it, while in the Chinese Legalist discourse, the law should come directly from the Dao (which exists independent of human consciousness), not through the medium of morality (which is an aspect of human consciousness) and moral virtues can be most effectively and universally cultivated and uplifted only when there is the rule of law in alignment with the Dao.

From the above generalization, we can see that Chinese Legalism is a thought system basically different from the Western one and it is really impossible to correctly understand and interpret the former in terms of the latter, i.e., without distorting the whole picture, knowingly or unknowingly. Therefore, though Prof. Winston does see the relatedness between law and morality in Han Fei’s legal theories and even notices Han Fei’s awareness of the Dao (“The Way is the beginning of all beings…”), he has failed to grasp the big-picture relationship between the Dao, the law and morality in Chinese Legalism. Actually, whoever wants to really understand traditional Chinese thought needs to adopt the most general and holistic Chinese philosophical worldview first. An accurate interpretation and fair judgment of the Chinese legal theory is impossible without an accurate understanding and fair judgment of the big-picture view underlying it. But still we appreciate Prof. Winston’s efforts at trying to faithfully interpret Chinese Legalism and his contribution to the communication and a better understanding between Western and Chinese cultures.

The rule of law is now commonly regarded as an obligatory step to establishing China’s rightful place in the global community. Yet it is widely believed that there are no indigenous roots for the rule of law ideal; it is an import from the West. The Chinese legal tradition, rather, is rule by law, as elaborated most fully in ancient Legalist texts such as the Han Feizi.

The distinction between rule by law and rule of law has many dimensions. Of central importance is the relationship of law and morality. Although no canonical formula exists for the rule of law, a moral ideal lies at the core, however it is specified. In rule by law, in contrast, at least according to the conventional understanding, law is amoral and an instrument of power.

The ideal is a government of laws, not persons, so the moral core (in a word) is impersonal governance. My thesis is that Han Fei’s text, the Han Feizi, displays this moral core and thus connects law and morality. I shall argue, indeed, that the Han Feizi advocates a purer form of the rule of law than is offered by many Western theorists. Chinese Legalism did not begin with the Han Feizi, but it is generally regarded as the most sophisticated exposition of the theory. I believe it is more nuanced than generations of commentators have acknowledged.

I shall suggest that, at least for the legislative ideal, worthy indigenous Chinese sources for the rule of law exist. I argue that the Han Feizi intends to link law and morality. It is an attempt to retrieve a text for contemporary understanding and use. It is often said, with good reason, that successive Chinese emperors followed the Legalist template set out by the Han Feizi. If it turns out that the Han Feizi carries a different message from the one it is usually taken to convey, the imperial history may have to be re-examined to determine when it followed the template and when it did not.

Governing by rules contrasts with governing by persons; it is impersonal. One obvious sense in which governance can be impersonal is that personal qualities of subjects, such as family pedigree or social rank, are not a basis for exemptions from the rules. The Han Feizi, as we shall see, makes much of this point.

Does the Han Feizi offer a picture of a legal order that is good according to some standard—and, indeed, good according to a moral standard? I think there can be no doubt. The Han Feizi consistently addresses its advice not to the ruler per se but to the good ruler—also referred to as the enlightened, benevolent, or sage ruler—and the language of success and failure in meeting the pattern set by the good ruler is pervasive. (This does not mean that Han Fei expects the ruler to possess exceptional qualities, either of virtue or intellect. The mediocre ruler, in particular, needs the guidance that comes from the correct ideal.)

Further, a conception of the public good guides the whole analysis. The good ruler “investigates the conditions of order and chaos” with the aim of promulgating clear laws and severe penalties “in order to rescue all living beings from chaos.” What counts as avoiding chaos and achieving order? At an abstract level, the answer is a regime of governance by law, which will serve every subject’s interest. On occasion, Han Fei goes further in specifying the public good. In the passage just quoted, for example, he adds: What the enlightened ruler does is to “rid All-under-Heaven of misfortune, prohibit the strong from exploiting the weak and the many from oppressing the few, enable the old and the infirm to die in peace and the young and the orphan to grow freely, and see to it … that father and son support each other…[and so on].”

For Han Fei, order was not an abstract problem but grew out of his experience during the Warring States period. In light of the extremity of the political situation, certain methods appeared necessary and appropriate. “If the [ruler] is stupid and upholds no rule, [ministers] will act at random.” That is, unless the ruler exercises strict and effective control, the mandarin elite will act to augment its own power and wealth. “The wealth and powerfulness of [ministers] eventually breed chaos.” [L II 271, Burton Watson, translator, Han Fei Tzu: Basic Writings (New York: Columbia U., 1964), same below] Thus, to the extent Han Fei can portray traditional Confucian society as disorderly, he warrants its replacement by a new kind of regime. The disorder in question need not be absolute; it can be the disorder created by Confucian social hierarchy and its deep inequalities, which are a continuing source of conflict and injustice—replaced by the orderliness of governance by uniform rules. In language as close as any ancient Chinese legal theorist could possibly get to formulating the rule of law ideal, Han Fei says: “[T]he most enlightened method of governing a state is to trust measures [i.e., laws] and not men [i.e., Confucian ministers].” [L II 332]

Are the standards of the internal morality of law evident, then, in the Han Feizi? I will suggest a positive answer by considering [1] the Han Feizi’s evident connecting of law and morality, [2] the manifest appeal in the text to many principles of the internal morality, and [3] the text’s recognition of the importance of impersonality in lawmaking. Let me note that, in part of the analysis that follows, I make use of several of the so-called Daoist essays in the Han Feizi. [They] are consistent with many, even if not all, of the other essays in it.

[1] Connecting law and morality. The first point to establish is that the Han Feizi aims to make a connection between law and morality (thus countering the conventional reading). The following passage is characteristic: “The Way is the beginning of all beings and the measure of right and wrong. Therefore the enlightened ruler holds fast to the beginning in order to understand the wellspring of all beings, and minds the measure in order to know the source of good and bad.” [W 16]

No doubt this passage defies full explication. But any reasonable reading has to allow that the good (enlightened, sage) ruler is guided by an objective standard of right and wrong and acts accordingly. In other places, there are similarly suggestive passages. Thus, a ruler must have the strength of character to defy the counsels of corrupt ministers and the self-interested pleas of common people, to “heed only that advice which truly accords with the Way.” [W 81; also 36-37] Elsewhere, Han Fei writes at length about the importance of wiping out “the five vermin” (groups of men who further their private interests at the expense of the public welfare) and encourages their replacement by “men of integrity and public spirit.” [W 117] Similarly, the enlightened ruler rewards ministers only for the public good they do. When the people esteem this system, “the state will be in good order.” [L II 272] These admonitions are not most easily read as strategies by which a ruler preserves power; they are precepts for achieving a desirable political order.

[2] The internal morality of law in the Han Feizi. Let us take note of at least some passages where the Han Feizi invokes the tenets of the internal morality. We should not expect the text to identify all of them; it is sufficient if it formulates a few and implies the others. Even less should we expect the Han Feizi to offer a clear expression of the rightness of the relationship between ruler and ruled that the internal morality involves. When we turn, in the next subsection, to the impersonality of law, we shall see how recognition of the rightness of the relationship emerges explicitly.

More telling evidence is the Han Feizi’s insisting not only on generality but universality—subjects of high rank must be treated no differently than those of lower degree or status. [D]uring Han Fei’s time, tens of thousands of military personnel deserted their posts and received protection from powerful families, thereby evading taxation and corvee service. Presumably, this phenomenon is at least part of what Han Fei had in mind when he wrote that the powerful would act on their own will, if they could, breaking the law to benefit themselves and helping their families by consuming state resources. [L I 97] In this sense, Han Fei fully grasped what it means to use law as the basic organizing principle of society.

[3] The impersonality of lawmaking. The third step toward acknowledging the moral agency of subjects—and the deeper insight in the Han Feizi—is that a regime of rules requires impersonal governance. Given Han Fei’s conventional reputation, this aspect of the argument is the most surprising.

Partly, the reasoning is prudential; micro-management is impractical. “If the ruler of men tries to keep a personal check on all the various offices of his government, he will find the day too short and his energies insufficient.” [W 26] However, the burdens of micro-management do not explain the importance of impersonal governance, for non-micro-managerial rule could still be selfish or at least self-interested. Yet it is clear that the Han Feizi rejects self-interested governance because it is incompatible with the public good. Governance becomes arbitrary when public power is used to serve private ends. “It is the duty of the sovereign to make clear the distinction between public and private interests, enact laws and statutes openly, and forbid private favors.” [L I 167] As we might say today, the Han Feizi opposes the rent-seeking behavior of well-organized interest groups.

The point is most clearly articulated regarding ministers, who must be “men who have a clear understanding of what is beneficial to the nation and a feeling for the system of law and regulations.” [W 22] The state is well ordered only if the ruler puts an end to the “private scheming” of ministers and “blocks [their] selfish pursuits…. If appointments to office are controlled by cliques, then men will work only to establish profitable connections.” [W 22] “It is the intelligent sovereign’s way that rewards [to ministers] always result from contributions to the public benefit….” [L II 272] Here, as elsewhere, we see that law moves people from the particular to the general; where they are inclined to follow more immediate desires, the law offers reasons for concentrating on more distant and long-term consequences.

However, restraint on the ruler is also evident: “For his part, the ruler must never make selfish use of his wise ministers or able men…. This is the perfection of good government.” [W 25] “Therefore, the officials [the enlightened ruler] appoints to office must have the required abilities, and the rewards and punishments he enforces must involve no selfishness but manifest public justice to gentry and commoners.” [L II 240] Along these lines, I would emphasize the Han Feizi’s extended defense of the practice of selecting government officials on the basis of merit even when contrary to the ruler’s personal likes and dislikes. [L II 82-83] This passage, along with the others cited, indicates why it is misleading to say the ruler hides his likes and dislikes so as not to be manipulated by his subordinates to their own advantage. At issue is not just the ruler’s struggle to maintain power but the struggle to achieve governance by law.

“Indeed, the purpose of enacting laws and decrees is to abolish selfishness. Once laws and decrees prevail, the way of selfishness collapses…. Therefore, in my main discourse I say: ‘The cause of order is law, the cause of chaos is selfishness. Once law is enacted, no selfish act can be done.’” [L II 235] It is true that, in this passage, the Han Feizi’s targets are Confucian worthies whose private interests are inimical to the state. But it is difficult to read this passage (and others) without applying the point to the ruler as well. Thus, the claim that the Han Feizi prescribes royal indulgence in “earthly delights and extravagant luxury” is, I believe, a severe misrepresentation and is countered by this: “If the ruler is greedy, insatiable, attracted to profit, and fond of gain, then ruin is possible.” [L I 135] Similarly: “When a violent man is on the throne, laws and decrees are arbitrary; ruler and minister oppose each other; the people grumble and beget the spirit of disorder.” [L II 255] Rather, “[t]he enlightened ruler makes people public-spirited….” [L II 181]

How do we make sense of this restraint on the ruler? How can it happen that a ruler’s laws and policies, when properly formulated, “are actually inimical” [W 81] to private interests, including those of the ruler? The answer, cryptically stated, is: If the state is well managed, it runs on its own, requiring little of the ruler. The ideal condition for a ruler is inactivity (wu wei). “[The ruler] does not try to tell others what to do, but leaves them to do things by themselves…. [H]e has provided the rules and yardsticks, so that all things know their place. Those who merit reward are rewarded; those who deserve punishment are punished. Reward and punishment follow the deed; each man brings them upon himself.” [W 38; L II 179]

We need an additional premise here, and I believe we get what we need by pursuing the hint that enlightened rulers exercise a natural form of governance, establishing a political order that embodies or reflects or is aligned with the Dao. Wu wei, I want to suggest, rests on a theory of spontaneous order. The good ruler does not issue directives in accordance with his own, necessarily limited understanding of the public good—a point we could underscore by emphasizing the middling talents of the ordinary ruler. He rather aims to make it possible for benevolent natural forces to work their way in human affairs. As Shen Buhai says: “Names rectify themselves; affairs settle themselves.”

With spontaneous order, human activity is coordinated but not directed. It is the product of individuals acting on their own initiative, engaging each other in a continuous series of mutual adjustments, subject only to laws that apply uniformly to all, resulting in an overall harmony or equilibrium—as though by an invisible hand. Is no one, then, assigned responsibility for general oversight of the institutions within which agents are interacting? Who formulates the laws that apply uniformly to all? The Han Feizi, I suggest, sees a role for a lawmaker who monitors the goings-on of All-under-Heaven and intervenes as necessary to sustain the conditions for natural forces to operate. Nonaction, therefore, is not a passive state. On the other hand, the activity it requires aims at preserving and refining institutional forms rather than achieving specific substantive outcomes.

Thus, the Han Feizi’s ruler embraces the moral core of the rule of law, the idea of impersonal governance, out of a desire to respect the natural order. Law, in turn, is not an instrument of control employed for the ruler’s personal ends. What the ruler wants is for subjects to be innovative and productive; he seeks to release energies and enhance social solidarity. In this light, the ruler regards the moral competence of subjects as social capital, a resource for achieving a well-ordered society. Well-trained soldiers and productive farmers are not valuable assets of the ruler but of the collectivity. The work that the ruler performs is to set boundaries and clear away obstacles and facilitate self-directed activity. Of course, the very capacities that make individuals a social resource also enable them to act for purposes of their own. Independent agents can act either in concert with others or against them. The lawmaker’s task is to get subjects to act with solicitude for the society as a whole. They will do so, presumably, if they see that, in a well-ordered society, their interest converges with that of everyone else. Gaining allegiance means eliciting support for the project of sustaining the state as a going concern. When successful, law creates a mode of association that promotes an orderly, fair, and decent society.

If this reading is not unfair to at least some parts of the text, it counters the conventional interpretation that has Han Fei say that the authority of law depends on the authority of the ruler. To the contrary, the authority of the ruler depends on the authority of the impersonal order the good ruler creates. The ruler who facilitates the spontaneous workings of the benevolent forces of nature will be regarded as having the authority to rule. Conformity to the natural order will elicit people’s allegiance.

Han Fei sometimes seems aware, but does not quite say that subjects, too, not just rulers, must be non-manipulative. Thus, even if he regards people as “naturally” self-interested, he hints that they do not remain so in a well-ordered polity. “Once law and decrees prevail, the way of selfishness collapses….” [L II 235] This openness to changes in human nature is consistent with the Han Feizi’s account of the stages of human history: “Men of high antiquity strove for moral virtue; men of middle times sought out wise schemes; men of today vie to be known for strength and spirit.” [W 100] These changes were not accidental but depended on circumstances. The work of the benevolent leader who establishes a regime of rule by law is so to shape people’s circumstances to produce such a result. “If laws and punishments are justly applied, then tigers will be transformed into men again and revert to their true form.” [W 39-40]