ChinaKnowledge.de -
An Encyclopaedia on Chinese History and Literature
Legalism (or legism) is a state philosophy flourishing during the Warring States period 戰國 (5th cent.-221 BCE). It became the leading doctrine under the Qin dynasty 秦 (221-206 BCE) and was, together with Confucianism, the philosophical foundation of the Chinese state administration at least until the end of the Qing dynasty 清 (1644-1911). The core concept of the legalists is that state and society are effectively organised by administrative and penal law (fazhi 法治 "rule by law") that is applied to all persons equally.
Forerunners of a recommendation of a bureaucratic state were Guan Zhong 管仲 (725-645 BCE) from Qi 齊, Guo Yan 郭偃 from Jin 晉 and Zichan 子產 (d. 522 BCE) from Zheng 鄭. Still, the real founders of the idea of the "legalist" state were Li Kui 李悝 (455-395), Wu Qi 吳起 (440-381), Shang Yang 商鞅 (390-338), Shen Dao 慎到 (395-315), Shen Buhai 申不害 (385-337), the theoretician Han Fei 韓非 (c. 281-233), and – as a practitioner – Li Si 李斯 (280-208), counsellor to the First Emperor of Qin 秦始皇帝 (r. 246-210 BCE).
The term fajia 法家 "legalists" first appears in the introduction to Sima Qian's 司馬遷 (145-c. 86 BCE) book Shiji 史記 (where he quotes from the treatise Lun liujia zhi yaozhi 論六家之要指 written by his father Sima Tan 司馬談), where it is said that "the legalists do not discern between relatives and non-relatives, between nobles and commoners, but do judge everyone according to the law". Ban Gu 班固 (32-92 CE), author of the history Hanshu 漢書, says that legalism originated in the regulations for the palace officials.
Although Confucius (Kongzi 孔子, 551-479) believed that ritual prescriptions (li 禮), etiquette (yi 儀), and personal models of virtuous conduct (de 德) were adequate for fostering coherence and order in society (lizhi 禮治 "rule by etiquette and ceremonial"), later Confucian scholars like Xunzi 荀子 (c. 316-c. 235) recognised that rituals actually serve to compel individuals to act reasonably and justly towards one another.
Guan Zhong and Zichan expanded the models of the ritual codices to encompass penal and administrative law. In the states of Qi, Jin, and Zheng, the ancient aristocracy, which consisted of semi-autonomous territories, was supplanted by bureaucrats who managed state-owned fields and communities. Although the rulers in these states acquired a more powerful position by removing the aristocracy, personal conduct and the exemplary, educative (jiaohua 教化) effect of moral behaviour continued to hold significant importance alongside edicts (ling 令) and law (fa 法). The virtue of the ruler, in alignment with Heaven, was deemed even more crucial than penal law, which reflects rule by authority. As a result, Guan Zhong is not always categorised as a legalist statesman. Nevertheless, his reforms aimed at establishing a bureaucratic government positioned him as an important forerunner of the legalist state as it functioned in practice.
This first, "soft" type of legalism was soon replaced by a stricter form that neglected moral behaviour's influence on society's order. This type of legalism, in a narrower sense, developed in the Qin state and the successor states of Jin, namely Wei 魏, Han 韓 and Zhao 趙.
Li Kui, counsellor of Wei, emphasised that the only way to strengthen a state's power was to enhance agricultural productivity and build up a large army. Consequently, the peasantry became the foundation of the Chinese state, as they provided taxes in the form of grain, corvée labour, and military service. Li Kui collected the legal codes of all states and utilised them to compile the code of Wei, the Fajing 法經. This code, of which only very few fragments have survived, included laws concerning robbery (Daofa 盜法), theft (Zeifa 賊法), prisons (Qinfa 囚法), arresting criminals (Bufa 捕法), miscellaneous matters (Zafa 雜法), and penal instruments (Jufa 具法).
At the same time, Wu Qi implemented military reforms in Wei and subsequently in Chu 楚. Both reformers also sought to strengthen the king's authority (shi 勢) by removing other nobles from significant administrative roles. As illustrated in the chapters of the Fajing, penal law played a crucial role. Even in later legal codes from the Qin period, administrative regulations are, in fact, penal regulations addressing disobedient or underperforming bureaucrats.
Penalty (xing 刑) and punishment (fa 罰) became the primary methods of controlling the bureaucracy. Simultaneously, rewards (shang 賞) and benevolence were often viewed as less vital for a well-functioning bureaucracy. In the eyes of the legalists, punishment and reward were readily applicable because humans, by nature, seek their profit (li 利) and thus avoid punishment while aspiring to remuneration. In Shang Yang's perspective (his book Shangjunshu 商君書 is preserved in larger fragments), reward was particularly effective in fostering the productive spirit of peasants and the fighting spirit of generals.
The etymology of the character for the word fa "law" (法, sometimes written in a longer form as 灋) is indeed very interesting. It means "to balance, to equalise" or, more concretely, "to apply the law equally to all." This meaning reflects social changes that enabled everyone to ascend the social hierarchy, making a crown prince a subject of the ruler like any other person. The term fa also carries the meaning of a "standard" that can be adhered to in any case and serves as a model.
Shen Buhai (his book was titled Shenzi 申子, surviving only in fragments) discussed a particular skill (shu 術) that the ruler needed to balance appointments and dismissals, as well as rewards and punishments. The latter two were perceived as the main tools (bing 柄) with which the ruler could manage the bureaucracy. Even in such a mechanistic environment, the Confucian principle of aligning designation (ming 名) with reality (shi 實) was upheld. The ruler was required to verify if a certain minister adequately administered his own jurisdiction, and nothing more. Bureaucrats were regarded as the most significant threat to the ruler and consequently needed to be monitored and restricted by all means. The enlightened ruler (ming zhu 明主) had to interview each of his ministers individually (du ting 獨聽, du duan 獨斷) to prevent collusion.
Shen Dao had a very Daoist imagination of a ruler's role, as can be seen in the preserved fragments of his book Shenzi 慎子. His authority was ensured by the use of laws instead of personal decisions. Bureaucratic laws were seen as a kind of natural law. Once put into function, they would make sure that the whole state would move without any further interference by the ruler. This idea corresponds to the Daoist concept of wuwei 無為 "non-acting" because activism might destroy the natural course of the world. The ruler was not any more an individual person but, just like the law itself, only the functional centre of the world. This centre could not consist for itself but only in cooperation with the bureaucracy and the population. Flourishing and decline of a state were to be led back to the system, and not to the single person of the ruler. Similarly, Daoist is Shen Dao's important observation that the law has to be adapted to circumstances. It is by no means everlasting but, like all things on earth, constantly changing to meet the needs of the day.
Han Fei, a politician in the state of Qin, merged the three concepts of law, skill, and authority into a form of summa legista (Ralf Moritz). The state, thus strengthened by its central government and its immense military machine, which drew recruits from the peasantry, would be able to conquer all other states and "unify all under Heaven" (bing tianxia 并天下).
Han Fei also adapted Daoist thought in his interpretation of the ruler and his politics of non-activity. He authored the oldest commentaries on the Daoist text Daodejing in the chapters Jielao 解老 and Yulao 喻老, which are part of the work Hanfeizi 韓非子. He explained that the "Way" (dao 道) is the natural principle underlying all things on earth and a kind of objective standard that governs not only objects but also society and the state. Legal standards ("laws", fa) must align with natural law, yet they need to be examined to determine if they are sufficiently effective.
Han Fei recommended dulling the people's minds (ruo min 弱民 "weaken the people") by issuing intimidating laws and regulations, rewarding whistle-blowers (gao jian 告奸) to cultivate mutual distrust among the populace, permitting vertical social mobility to foster an atmosphere of competency, and finally, preventing a circle of intellectuals from discussing political matters; in other words, prohibiting the emergence of an intelligentsia that might challenge the government. Consequently, Han Fei mandated that all books, except legal texts, be prohibited from circulation, particularly historiographical works and those from other philosophical schools (mainly Confucians and Mohists) that offered alternatives to the legalist state.
Legalist thought significantly transformed the structure of Chinese states during the Warring States period. The political system evolved from a network of regional states, where a class of nobles shared power with the royal central government, to highly centralised bureaucracies in which various lords ruled with the assistance of a bureaucratic apparatus. Simultaneously, the rules, standards, and laws designed to operate this bureaucratic machine developed into the most significant type of law in China, manifested in administrative and penal law. Throughout history, civil law was largely disregarded by lawmakers, and civil cases had to be resolved according to the principle of analogy and based on precedential cases.
The influence of the legalists on the structure of the state led to the unification of the empire by the king of Qin in 221 BCE. Following a brief period of relaxation at the start of the Han period, legalist principles of governance were integrated with Confucian expertise in ritual and educational affairs. This fusion laid the groundwork for the structure of the Chinese empire until its downfall in 1911. The incorporation of legalism into the state structure under Emperor Wu 漢武帝 (156-87, r. 141-87 BCE) of the Han dynasty 漢 (206 BCE-220 CE) was more a practical than an ideological matter. While Confucianism dominated the rhetoric, legalism furnished the concepts for the practical organisation of administration, from household registers to military recruitment and corvée labour, as well as in efforts to bolster the emperor's authority and to punish disobedient officials.
Points of contact can be found not only between legalism and Daoism, but also between the former and Confucianism, particularly in the idea that the entire state relies on the results of agricultural production, and that the peasantry must therefore be viewed as the foundation of society and treated accordingly. In this respect, the First Emperor and his successor were less successful legalists due to their ruthless exploitation of the peasants for the military machine and the construction of the Great Wall and significant buildings in and around the capital. Another example of a one-sided application of legalism was Emperor Taizu 明太祖 (r. 1368-1398), the founder of the Ming dynasty 明 (1368-1644) who not only issued a series of codices to control dynasty members but also harboured deep mistrust of all state officials and regularly conducted purges.
In contrast to this type of "exploitative legalism", the "benevolent legalism" of Emperor Wu of the Han and, for example, the Yongzheng Emperor 雍正帝 (r. 1722-1735) of the Qing dynasty, proved to be much more effective and, in fact, contributed to the establishment of strong states with a well-organised bureaucracy.