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Notes

The aspect of Shang Yang's current that has a larger place for the Warring States would be the mobilization of men, with ministers recruited for census. Shang Yang in this regard would be derivative, with the Book of Lord Shang simply being what remains of it.

Modernly, some have taken their figures as suitable to categorization as political realists.

Governmental minimalism

Mohism believed in reward and punishment, but also motivations like love. reward and punishment would be given a more central role in the Gongyang, but the Analects of Confucius vary in their view of punishment from acceptance to complete opposition; Originally or not, it is included in the analects, but ritual was supposed to reduce the need for punishment by teaching morals. It was not considered proper to punish people who didn't know morals. If they do not know the reason, "they would not know where to put hand and foot".

Vacillating against punishment, Confucius, A.C. Graham says, "accepts law as belonging to the apparatus of government, but measures success in ruling by how little it is necessary to apply it", saying "In hearing litigation I am no different from others, but the point is surely to bring it about that there is no litigation!" Although not all of Shen Buhai's doctrine lines up with Confucianism, he does quote the analects. Liu Xiang regards Shen Buhai's work as advocating the use of administrative technique and supervision to hold responsible and abolish punishment.

The Book of Lord Shang's development spans over a hundred years. Aiming at quick results, the work repeatedly advocates the use of severe punishment to abolish punishment, but ultimately comes to places emphasis on spreading knowledge of the fa (law); "The multitude of people all know what to avoid and what to strive for; they will avoid calamity and strive for happiness, and so govern themselves."

It's late chapter 24 makes use of the terminologies and concerns of shi situational authority, associated with Shen Dao, and shu managerial methods, posthumously associated with Shen Buhai; but their generically popular terms do not prove association or influence. Essentially, it's chapter is "concerned exclusively with the maintenance of officials".

Deeming officials unreliable, it abandons direct governance in search of alternate means, delegating mutual responsibility to the people mainly in an attempt to reduce reliance on officials. More than any ability to establish a modern totalitarian state, Shang Yang's ancient state attempts to rely on residents for such basic functions as catching criminals, because it cannot rely on officials. It takes a minimalist approach to government, opposing officials because it is unable to control them, and because they do not necessarily provide benefits, while agriculture and war does.

Early administrative realism

While Legalism as a translation of fajia would only be 'imprecise', it would be quite an quite inaccurate designation for their figures currents as they otherwise existed in the Warring States period. Shang Yang's penal law was only one part of a broader sociopolitical program for agriculture and war, including a dividing of the population into military command structures responsible for their conduct. Shang Yang and Han Fei's proposed rulers oversee colonization, taxes, the military, an instructional, standardized penal law, and for Han Fei, administration of the bureaucracy, allowing accountable ministers to volunteer themselves to office on the basis of proposals. Considering them harmful to such ends, Han Fei opposes traditional privileges, demagoguery, tyranny, and corvée.

Shang Yang's reforms may be considered radical, threatening powerful interests in his state. However, the kings of the Warring States more broadly had at least become more powerful, recruiting officials concerned firstly with census and universal military service. Prime ministers Shen Buhai, and Zichan as a potential predecessor, were both concerned with the recruitment of ministers, but also defense. A figure in the Stratagems of the Warring States, Shen Buhai was noted historically both with bureaucracy and making the Hann state's military strong.

Shen Buhai sees the ruler's more dangerous ministers in much the same way as bandits and invaders, saying "one who murders the ruler and takes his state does not necessarily climb over difficult walls and batter in barred doors and gates." Characterized by Creel as emphasizing "rational organization and technique”, his administrative techniques (fa-Shu) include a monopolization of power (shi), which ought not be displayed, administrative details (fa), and commands, issued cautiously.

Later administrative realism

The late Qin state's Lüshi Chunqiu still sought ideological unity on a military basis, avoiding what it takes to be the craftiness and stupidity of various viewpoints. Soldiers are unified with drums, minds with standards (fa) and commands. At the same time, Han Fei's theory rejects ideological unification; he takes the ideologies of his opponents in Mohism and Confucianism as based in writings about long dead men. From his point of view they cannot both be right, and are presumably either lying or deceiving themselves.

His theoretical government is to be based more in the idea that typical people are able to follow standardized rewards and punishments than they are Confucian ideas of benevolence and righteousness. While the Qin dynasty had courts, in contrast to it's earlier military model, Han Fei's politics can compared more to a court of law, or "call for bids", at least administratively. Not accepting dead witness, Han Fei's opponents are to be tried by the ruler, and what amounts to accountable judge magistrates. Appointing them to their own accountable offices to test their theories, he allows them to work out systems judged by their own merits.

For Shang Yang and Han Fei, ideology is given little weight, and political unity is found in the administrative power and authority of the ruler. But while Han Fei is authoritarian and anti-ministerial, his basis, in Shen Buhai's model, can still be taken to have sought a comparatively cooperative, impartial government. Inasmuch as it could evolve beyond the interests of the ruler, as still advocated in the Han Feizi, it could optimistically be expected to have evolved towards a statist, legislative rule of law with a potential for earlier market developments, if combined with a Daoist personal liberty. But as a domain of law experts, such Legalist comparisons see limited exploration in formal Sinology.

Legalist predecessors

Han Dynasty historian Sima Qian originally claimed figures of the Legalism, including Shen Dao, Shen Buhai, and Han Fei as having studied the teachings of his own faction, "the Teachings of the Yellow Emperor and Lao-tzu" (Huang-Lao), synonymous with Daojia ('school of Dao', early Daoism). Although modernly included under early Daoism, it would not have meant Daoism as understood modernly.

Regardless, texts commonly classified Guan Zhong and Shen Dao under Daojia before Legalism. Associated with Guan Zhong, the Guanzi, with its proto-daoist texts, was classed as Daoist in the Han dynasty bibliography. The lack of distinction between Taoism and Legalism would not suggest that the distinction existed prior to Han dynasty. Given its precedent, and formal similarities between the texts and Daoism, including Han Fei's advocacy of wu wei (so-called "effortless action") or reduced activity by the ruler, the theorists were often supposed by the Chinese and early scholarship to have studied Daoism. Modern scholarship does not take the Daodejing to be as ancient; incomplete versions date back to the fourth century B.C., while the earliest complete written editions of the Daodejing only date back to the early Han dynasty. No pre-Han records discuss it.

By Creel's time, few critical scholars believed Laozi to have been a contemporary of Confucius. Although incomplete versions of the Daodejing may have been contemporary to Shen Buhai's time, Creel did not find Shen Buhai, as Han Fei's predecessor and prior prime minister of their native Han state, to be influenced by Daoist ideas, lacking metaphysical content. Shen Buhai quotes the Analects of Confucius, in which Wu Wei can also be seen as an idea. As had generally already been accepted by scholarship at the time, Creel did not find the Han Feizi's Daodejing commentary to have been written by Han Fei. A.C. Graham would reiterate that it does not appear to make effective use of the Daodejing. The Han Feizi is most similar to the Shen Buhai fragments.

As discussed in A.C. Graham's (1989) time, the final chapter of the Zhuangzi does not regard Laozi and Zhuangzi as having been part of a Daoist school. Not including the Confucians, the Outer Zhuangzi's history includes Mohists, Shendao, Laozi, and Zhuangzi, effectively leaving the Mohists as a primary influence. However, while others of the Fajia are left out, the Zhuangzi takes Shen Dao as Daoistic, preceding both Laozi and Zhuangzi. With back in Sinologists Benjamin Schwarz and Graham, Hansen, of the Standford's Daoism, would take Daoist theory as beginning in the relativist discussions of Shen Dao, and still considers Shen Dao's theory foundational for a Daoist favoring of Dao, as meaning guide, over Heaven, a narrative shared with the late Mohists in that an appeal to Heaven justifies thieves as well as sages.

Although modernly more often given to contrast and comparison with the Mohists, attempts to compare or root the Han Feizi in proto-Daoist attitudes or naturalism can be still seen within scholarship. Creel did not exclude the possibility that Daoist ideas influenced the fajia before they were written down in the Zhuangzi and Daodejing, or for instance influence by Yang Zhu and the Yangists, but his evidences suggested Huang-Lao as not existing during Shen Buhai's time. Although professor Tao Jiang includes the Yangists in his discussion, no presently received work compares the Yangists with "Legalism".

Evidences for Daoist influence on the Han Feizi remain lacking outside of a few tertiary chapters. That being said, writing at the turn of its discussion, John Makeham (1990) still considered some of the Han Feizi's most typifying chapters as being of distinctly Daoist quality, not considering, at least, the dividing line between the two as having ever been particularly clear.

Under construction

Confucian opposition https://archive.org/details/whatistaoismothe0000cree/page/112/mode/2up

fa

Ancient China does not have a word that simply means "law." Fa primarily means norms and models, though fa is included in it.

Zhuozhuan

Historical argument was common in the Warring States period. As perhaps the most syncretic text of the Warring States period, the Han Feizi's takes the historical view of the Book of Lord Shang, also using Confucian discourse to undermine Confucianism. Drawing on the Confucian Zuozhuan, it's historical content may be characterized as the most sophisticated attack on the usage of history for argument and the sages of the past, repeatedly reiterating stories of ignorant rulers, ministerial treachery, plots, usurpations, and schemes.

Pines 342,343

Han Fei and his followers, these consisted primarily of tales of skillful or blundering decisions by political figures that demonstrated principles of statecraft. The Confucian or ru tradition, on the other hand, employed chronicles to derive lessons from history. The Zuo zhuan presented narratives of political events, punctuated both by speeches attributed to participants and judgments assigned to Confucius or an unnamed "gentleman." These speeches and judgments assessed the conduct of actors in terms of the dictates of ritual and thereby justified their success or failure.

Writing and authority p7

The Ruler's Interest?

Han Fei advocates that only a mediocre ruler is needed. A government run by laws may very well only require a mediocre functionary as it's president. But Han Fei did not consider government by law sufficient in his time. He believed that a government by methods, associated with Shen Buhai, was required. He would require as much authority as possible, a brilliant mind to seek all villainy, the ability to control all officials, an abandonment of desires and opinions, and a keen sense of advantages and disadvantages. Despite Han Fei's advocacy, for all that is required of a government by methods, the ruler may as well be a sage.

notes

Han Fei advocates that laws and methods should extend to both officials and the people. But because the ruler does not use his own judgement, his discussions about appointing and governing officials are not actually larger than of Xun Kuang.

Shang Yang and Han Fei are less Confucian, while Han Fei and Shen Buhai have a narrower bureaucratic focus, , but he and the school of names and share the same terminologies, distinctions, and administrative practices. At a general level they represent the same developmental category. The late Han Fei shares the same background of administrative practices, even if bureaucratic advancement can be seen more obviously in him.

Sima Qian could never have imagined it being taken as a historical category. The Hanshu would be base the school prominently around the figures of Han Fei's combination from the late Warring States period. Although some of them were known, they were not part of Warring States period discourse the way Confucianism and Mohism were. As a late figure, while Han Fei could have potentially influenced the first and second emperors, he had little to no role in the preceding Warring States period.

Realism and morals

Han Fei's and his three predecessors have often been characterized as "starting not from how society ought to be but how it is", as famously associated, at least in the west, with A.C. Graham, who adds the Guanzi while considering it's tradition different. In a Realist vein, A.C. Graham's "Disputers of the Tao" (1989) titled his Legalist chapter "Legalism: an Amoral Science of Statecraft", sketching the fundamentals of an "amoral science" based largely, Sinologist Goldin notes in a criticism, on the Han Feizi (and excluding the Guanzi), consisting of "adapting institutions to changing situations and overruling precedent where necessary; concentrating power in the hands of the ruler; and, above all, maintaining control of the factious bureaucracy."

Han Fei's figures have still been characterized modernly as questioning a connection between personal virtues and political authority, focusing on the institutionalization of political power, considering personal virtues disruptive or even hostile towards political power. Graham says: "they have common ground in the conviction that good government depends, not as Confucians and Mohists supposed on the moral worth of persons, but on the functioning of sound institutions." However, as seen in the Guanzi text, not all Chinese however took fa as an "amoral science", nor, aside, is the Han Feizi amoral simply.

Putting aside their association with oppression, Hu Shi 胡適 (1891–1962) hailed Han Fei and Li Si for their “brave spirit of opposing those who ‘do not make the present into their teacher but learn from the past’”.Pines Stanford

Despite its essentially relegated status in the Han Feizi itself, discussions on chapter 40, being that of Shen Dao's shi or power, often reflect the overall interpretation of the work. The text itself however states that Han Fei's system of laws and methods aim to be serviceable for an average ruler, but would be less suited to a tyrant.

Yuri Pines of the Stanford's "fa tradition" still takes the realist principle ("taking the state and people as they actually are") as a foundation for the tradition. While the old Legalist interpretation has been criticized modernly, Pines takes Realist interpretation as having been defended to be more or less still legitimate, although as with Tao Jiang accepts Legalism as having explorative value. Noting them as "generally devoid of overarching moral considerations", or conformity to divine will, Pines terms the members of the fa tradition as "political realists who sought to attain a 'rich state and a powerful army', and ensure domestic stability, only displaying "considerable philosophical sophistication" when they needed to justify departures from conventional approaches.

Although taking the thinkers as realists, as a matter of discipline, Pines suggests the fa tradition as a preferable moniker, with realism implying that other thinkers were simply idealists, and fa itself representing not oppression but transparency. Pines qualifies against a perception of them as totalitarian, as stated by "not a few scholars", including Feng Youlan (1948), Creel (1953) as prior to some of his more prominent work on Shen Buhai, and Zhengyuan Fu's 1996 The Earliest Totalitarians. Although (the Shang Yang-Han Fei's branch's harsh laws) and "rigid control over the populace and the administrative apparatus" might seem to support totalitarianism, apart from exposing the fallacies of their opponents, the fa tradition has little interest for instance in thought control, and Pines does not take them as "necessarily" providing an ideology of their own.

Masters Texts tradition

What would be termed Confucianism and Mohism were the only two sustained Warring States period 'scholarly traditions', or schools. Little is known about Mozi (470 BC–391 BC), but the followers of his religious movement initiated philosophical debate in the Warring States period, seeking objective moral standards (fa) through 'tightly reasoned arguments'.

Mohist analytics

The Mohists, of Mozi (470 BC–391 BC) initiated philosophical and political discussion, theory, and reform. It's school contains the distinguishing concepts of fa (standards or models) and names, which has an influence for the school of names (Ming-Jia) and for Han Fei, Shen Buhai, and to a lesser extent Shang Yang.

Although Han Fei's late tradition would develop its own unique method, he and the school of names and share the same terminologies, distinctions, and administrative practices. At a general level they represent the same developmental category. Shang Yang and Han Fei are less Confucian than the school of names, while Han Fei and Shen Buhai have a narrower bureaucratic focus, similar to the Confucian rectification of names.

Han Fei is less focused than the Mingjia on the philosophy of names and realities, but words and names are essential for administration. Han Fei's ruler names ministers to responsible offices based on their own words, bypassing philosophical debate. Conversely, with a founder who drew up a code of penal laws, the mingjia also dealt in litigation, often using fa (models) to determine whether cases should treated similarly. While the primarily administrative Qin dynasty (221 BC–206 BC) only included a relatively sophisticated penal law alongside li ritual, its officials used comparative model manuals to guide penal legal procedure based on real-life situations.

Wealth and Strength

Associated more with Shang Yang and Han Fei, a primary object for their current is “a rich state and a strong army” (fu guo qiang bing 富國強兵) or (fuqiang 富强, “strong and powerful”). It aimed at the unification of China, or as it was called at that time, "the entire subcelestial realm". It would be adapted by Japanese militarists during the Meiji Restoration as Fukoku kyōhei.{{Yinghong. Later thinkers of the Self-Strengthening Movement during the opium war and taiping rebellion, even down to Deng Xiaoping and Jiang Zemin's reforms can be taken as motivated by it's goal.China's integration in Asia. 2013 p258

Early Warring States officials were employed primarily for the census and mobilization of peasant households. Aiming at universal military service, the ministries developed towards military specialists, diplomats, chroniclers, and finally reformist statesmen. Of their representative texts, only the Shangjunshu, Han Feizi and Guanzi remain in larger part, ultimately grouped together as a school of thought in the Han dynasty.

Regardless of their opinion, after the Discourses on Salt and Iron of 81 BCE, supporters of “a rich state and a strong army” generally distanced themselves from Shang Yang and Han Fei, excoriated as 'Legalists' who are “strict and have little kindness” (Sima Qian), with cruel laws and opposition to transformative education. Salt and Iron war tax organizer Sang Hongyang, who defended Shang Yang, Shen Buhai, and Han Fei, would be posthumously excoriated in association with Shang Yang, though his tax evasion policies punished by a year's exile rather than mutilation. Loewe (1986), 180–181.

At least as based in the United States, for China to be rich and powerful still sees some criticism by Chinese scholars modernly, if taken as a primary value.Yinghong

Discourses of Race and Rising China By Yinghong Cheng · 2019 https://www.google.com/books/edition/Discourses_of_Race_and_Rising_China/ht-GDwAAQBAJ?hl=en&gbpv=1&dq=fuqiang+%E5%AF%8C%E5%BC%BA,+strong+and+powerful&pg=PA254&printsec=frontcover

school of names

Compared by the Stanford Encyclopedia of Philosophy with Socrates, the Mohists, of Mozi (470 BC–391 BC) initiated philosophical and political discussion, theory, and reform. It's school contains the distinguishing concepts of fa (standards or models) and names, which has an influence for the school of names (Ming-Jia) and for Han Fei, Shen Buhai, and to a lesser extent Shang Yang.

Han Fei is less focused than the Mingjia on the philosophy of names and realities, but words and names are essential for administration. Han Fei's ruler names ministers to responsible offices based on their own words, bypassing philosophical debate. Conversely, with a founder who drew up a code of penal laws, the mingjia also dealt in litigation, often using fa (models) to determine whether cases should treated similarly. While the primarily administrative Qin dynasty (221 BC–206 BC) only included a relatively sophisticated penal law alongside li ritual, its officials used comparative model manuals to guide penal legal procedure based on real-life situations.

Meaning something akin "to rule by fa", the term Legalism is modernly about as good a translation for Fajia as it would be for the Mingjia. With figures who have their own individual traditions and some interlinking commonalities, the term would essentially include and mischaracterize both posthumous categories. With Shang Yang as the most Legalist of them, and some dealings in philosophy and law, the members of both 'schools of thought' sought office, and dealt in other problems. Where most successful they were prime ministers, applying their same analytical milieu to the broader administration in different ways.

reward and punishment

Mohism, as a relevant forebear, can involve punishment. But the broader Chinese tradition considers punishment only one tool, with people responsive to Confucian education, or in the Mozi, attitudes and just rules themselves. The Book of Lord Shang highlights honor, and regards his broader program of fa or law as a teaching transmitted by the accountable laws officers, aiming to spread knowledge of it; "The multitude of people all know what to avoid and what to strive for; they will avoid calamity and strive for happiness, and so govern themselves.

Shang Yang and Han Fei based themselves in a changing with the time paradigm. Their ideological position dissuades relying on the past, or the Mohist idea of heaven. But unasmuch as can be called Legalists, they were less successful at arguing that laws and punishment were the most effective measures for their time. The Book of Lord Shang imagines that laws and bureaucracy will help create order, and their concept of fa may have been convincing to some. But their ideas were still largely theoretical even by the time of the Han Feizi, and less effective at demonstrating how they would be accomplished. The Han Feizi makes minor references to the Dao in a couple chapters, but mostly as prelude to familiar administrative recommendations.Dao Companion 16 A quotation from Tao Jiang's exploratory work on justice and humaneness highlights the Qin as more conservative than the Mohists, containing both Confucian and Mohist elements. With a "slightly modified" quotation from the late Qin work, the Lüshi Chunqiu.

Commentary

it has been said that his figures "seem appropriately grouped together", but as political realists rather than under the old term Legalism.

While the classical period has loose networks of proto-Daoists and texts, it did not know of Daoism or Legalism as schools.

Dividing up his forebears into different elements, Han Fei differentiates Shen Buhai's fa (standards) as administrative Technique; he had disorganized law. Sima Qian makes the same discussion as Han Fei, and himself seemed to be clearly aware that fa had senses which included both law and administrative method. While Creel and some others have simply used Fajia, and some none at all, the Stanford Encyclopedia of Philosophy has introduced them as the fa tradition and fa thinkers.

All other traditions began in the sharing of texts, named after single masters, often grouping together the reforms of several persons as one. While the classical period has loose networks of proto-Daoists and texts, it did not know of Daoism or Legalism as schools.

Han Fei's lineage

The Book of Han prominently lists Han Fei and his philosophical lineage, Shang Yang, Shen Buhai, and Shen Dao under the school of fa. Han Fei presents Shen Buhai and Shang Yang as the opposite components of his doctrine in chapter 43 of his named text, Han Feizi, with Shen Buhai as focused on administrative technique (fa-shu), and Shang Yang fa "standards" as including law. Their three figures would commonly be paired together in the Han dynasty. With the addition of Chapter 40's Shen Dao, they were Warring States period thinkers and statesmen, but probably never a school in the sense of the Confucians or Mohists.

Han Fei's lineage

Sima Tan and Sima Qian named the six classical schools of thought in Chinese philosophy. He does not name anyone under the schools, and his Fajia school was not a Warring States period category. It only comes to mean something more akin to Legalism in the Book of Han, which names some of it's early figures, one hundred years later. More like a house of thought, Sima Tan defined the school more in terms of office divisions and responsibilities. Despite later associations, Sima Qian divided Shang Yang from Shen Buhai and Han Fei, taking them as more Daoistic thinkers, like Laozi and Zhuang Zhou. The Book of Han similarly sook the Guanzi as Daoist, before it is later taken as Legalist.

Han Fei presents Shang Yang and Shen Buhai as the opposite components of his own doctrine, and pseudo-Li Si, per Sima Qian, makes the same discussion, associating Shen Buhai with control of the bureaucracy, Shang Yang with law, and Han Fei with both. Associations of Shen Buhai, Shang Yang and Han Fei become common in the early Han dynasty, and although the figures were influential, they were probably never an organized or self-aware movement in the sense of the Mohists and Confucians; they are essentially Han Fei's philosophical lineage. The Book of Han would list six men apart from Han Fei, Shang Yang, Shen Buhai, and Shen Dao, though it does not give them biographies.

The scholar Shen Dao, discussed in chapter 40 of the Han Feizi, was taken as having a group by early scholarship, and is included in the 'typical canon' modernly as part of Han Fei's lineage. He 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. He only uses the term twice in the his fragments, and Xun Kuang calls him "beclouded with fa". Sima Qian lists him with other figures of the Jixia academy, like Xun Kuang and Mencius. Although evidentially known by some in his time, and included in the Book of Han, he has no record of any notable activity, and is only mentioned in the shiji in a stub with the claim that he had studied Sima Qian's own Huang-Lao ideology. Creel found no following for him comparable to Shang Yang or Shen Buhai in either the Warring States period or Han dynasty.

Han Fei's three predecessors are glossed in early scholarship under the elements of fa, shu, and shi. But shi is a minority, while Shu ("Technique") is Han Fei's distinctive for Shen Buhai's fa. Correlating facts and claims, although reducing capital punishment, Shen Buhai's administrative method would be paired with Shang Yang, incorporated into the Han dynasty penal law offices, and ultimately obscured as criminal law. Han dynasty figures Liu Xiang and Liu Xin would assign the school a fictional origin in an ancient department of criminal justice, together with departments for the other schools, and the Book of Han would receive them as something more akin to Legalists.

In the Warring States period, royal power increased. Offices became less hereditary and more based on royal power. Cam.Ancient China.p604

Often taken in the west as simply amoral, Chinese scholar Peng He positively associates Deng Xi with Chinese Legalism, which he defends in connection with the Chinese legal tradition. The primary categorical difference is that the Fajia or Legalists, initially employed as a Han dynasty slur, are a posthumous category invented by Sima Qian, who does not name anyone under the schools. Sima Qian originally classes Shen Buhai and Han Fei Xing-ming. As a matter of differentiation, John Makeham considers Han Fei as representing an unprecedented mechanical advancement.

Apart from building Shen Buhai, some of Han Fei's administrative ideas,(Xingming) or at least his variation on them, are unique in ancient China.

Lede

Fajia (Chinese: 法家; pinyin: fǎ jiā), often translated as Legalism, is one of Sima Qian's six classical schools of thought in Chinese philosophy. It represents several branches of thought from early thinkers such as Guan Zhong, Li Kui, Shen Buhai, Shang Yang, and Han Fei, whose reforms and ideas contributed greatly to the establishment of the bureaucratic Chinese empire. The dynasties from the Qin to the Tang were characterized by the 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 in 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. Sun Tzu's Art of War incorporates both a Daoistic philosophy of inaction and impartiality, and a Legalist system of punishment and rewards, recalling Han Fei's use of the concepts of power (勢, shì) and technique (術, shù).

Concerned largely with administrative and sociopolitical innovation, Shang Yang was a leading reformer of his time. His numerous reforms transformed the peripheral Qin state into a militarily powerful and strongly centralized kingdom. Much of Legalism was the development of the ideas underlying his reforms, which led the Qin to ultimate conquest of the other states of China in 221 BCE. With an administrative influence for the Qin dynasty, the First Emperor and succeeding emperors often followed the templates set by Han Fei, Shen Buhai and Shang Yang.

pictures

Between Mozi's background as an engineer and his pacifist leanings, the Mohists became experts at building fortifications and sieges.

Small seal scripts were standardized by Li Si after the First Emperor of China gained control of the country, evolving from the larger seal scripts of previous dynasties.

The 12 characters on this slab of floor brick affirm that it is an auspicious moment for the First Emperor to ascend the throne, as the country is united and no men will be dying along the road.

The key figure in the late imperial bureaucracy was the district magistrate, a combination of a mayor, chief of police, judge, and even military commander. He obtained the position by passing the examination for the civil service and performance at a lower level. He had a staff, some who moved with him, some permanently located in the district. Any penalty more serious than bambooing had to be approved by higher officials, any decision not based on statute required approval from Peking.

Drawing by William Alexander, draughtsman of the Macartney Embassy to China in 1793.

Shen Buhai and Han Fei essentially advised that rulers demand (or restrict) performance in accordance with a minister's office, with Han Fei proposing to allow ministers to 'bid' for office on the basis of their own proposals. Although more focused on penal law than bureaucracy, Shang Yang's fa also regulates the law offices: "Government officials and people who are desirous of knowing what the fa stipulates shall all address their inquiries to these fa officers, and they shall in all such cases clearly tell them about the fa and mandates about which they wish to inquire."

Han Fei's three predecessors are glossed in early scholarship under the elements of fa, shu, and shi. But shi is a minority, while Shu ("technique") is Han Fei's distinctive for Shen Buhai's fa. Han Fei otherwise quotes Shen Buhai as using fa (standards) in the administration, with his fa often translated as method or technique.

Han Fei's lineage

Fajia is one of Sima Tan's six school of thought. Although it's figures were influential, they were probably never an organized or self-aware movement in the sense of the Mohists and Confucians. Sinologist Herrlee G. Creel took Shang Yang as the Fajia's Legalist school, with Shen Buhai its administrative wing. Han Fei presented the two as the opposite components of his doctrine. Credited by Creel as precedent for their within the Fajia, Chapter 43 of the Han Feizi says:

Now Shen Buhai spoke about the need of Shu ("Technique") and Shang Yang practices the use of Fa ("Standards" as including law). What is called Shu is to create posts according to responsibilities, hold actual services accountable according to official titles, exercise the power over life and death, and examine into the abilities of all his ministers; these are the things that the ruler keeps in his own hand. Fa includes mandates and ordinances promulgated to the government offices, penalties that are definite in the mind of the people, rewards that are due to the careful observers of standards, and punishments that are inflicted upon those who violate orders. It is what the subjects and ministers take as a model. If the ruler is without Shu he will be overshadowed; if the subjects and ministers lack Fa they will be insubordinate. Thus, neither can be dispensed with: both are implements of emperors and kings.

With the milder policy influence of Shen Buhai more prominent in the earlier Han dynasty, he and successor Han Fei essentially advise that the ruler "demand performance" in accordance with a minister's office, allowing ministers to bid for office on the basis of their own proposals. Although often associated with Shang Yang, Fajia itself refers to office divisions and responsibilities, which Sima Tan took as a "one-time policy that could not be constantly applied." Later generations refer more to Shen Buhai and Han Fei: The term "Shen-Han (school)" 申韩 is found in dictionaries dating back to at least the Qing dynasty, glossing them as the Legalist school.

With a potential influence in Daoism, scholar Shen Dao would remembered for his secondary subject of shih or "situational authority", of which he is spoken in Chapter 40 of the Han Feizi and incorporated into The Art of War. He only uses the term twice in the his fragments. and Xun Kuang calls him "beclouded with fa". He was earlier taken as having a group based on the chapter, but although known by some in his time, he has no record of any notable activity, and is only mentioned in the shiji in a stub.

Realist commentaries

In contrast to what he takes as the "simple behaviourism" of Schwarz and Graham, Sinologist Chad Hansen (1992) takes Han Fei as more sociological. The ruler should not trust people because their calculation is essentially based on their position, regardless of their past relationship. A wife, concubine or minister all have positional interests. Hence, the ruler engages in calculations of benefit rather than relation. Ministers simply interpret moral guidance in ways that benefit their position. The ruler exclusively uses Fa measurement standards for calculation to reduce possible interpretation. The enemy of order and control is simply the enemy of objective standards, draining power by twisting interpretation through consensus evaluation of clique interests.

Ross Terrill's 2003 New Chinese Empire viewed "Chinese Legalism" as "Western as Thomas Hobbes, as modern as Hu Jintao... It speaks the universal and timeless language of law and order. The past does not matter, state power is to be maximized, politics has nothing to do with morality, intellectual endeavour is suspect, violence is indispensable, and little is to be expected from the rank and file except an appreciation of force." He calls Legalism the "iron scaffolding of the Chinese Empire", but emphasizes the marriage between Legalism and Confucianism.

Leadership and management in China (2008) takes the writings of Han Fei as almost purely practical. With the proclaimed goal of a “rich state and powerful army”, they teach the ruler techniques (shu) to survive in a competitive world through administrative reform: strengthening the central government, increasing food production, enforcing military training, or replacing the aristocracy with a bureaucracy. Although typically associated with Shang Yang, Kwang-Kuo Wang takes the "enriching of the state and strengthening of the army" as dating back to Guan Zhong.

Contrary Graham, Goldin (2011) would not regard Han Fei as trying to work out anything like a general theory of the state, or as always dealing with statecraft. Noting Han Fei as also often concerned with saving one's hide, including that of the ruler, the Han Feizi also has one chapter offering advice to ministers "contrary to the interests of the ruler, although this is an exception... The fact that Han Fei endorses the calculated pursuit of self-interest, even if it means speaking disingenuously before the king, is not easily reconcilable with the reconcilable with the notion that he was advancing a science of statecraft."

Pines page has taken the goal of a “rich state with powerful army” as a primary subject since 2014. In this vein, Pines takes human nature to be a "second pillar" of fa political philosophy, as eschewing its discussion. The "overwhelming majority of humans are selfish and covetous", which is not taken to be alterable, but rather "can become an asset to the ruler rather than a threat." In this regard, Han Fei is an addendum to Gongsun Yang, with Shen Dao contributing.

Kenneth Winston emphasizes the welfare espoused by Han Fei, but while Han Fei espoused that his model state would increase the quality of life, Schneider (2018) reviews this as not being considered this a legitimizing factor, but rather, a side-effect of good order. Han Fei focused on the functioning of the state, the ruler's role as guarantor within it, and aimed in particular at making the state strong and the ruler the strongest person within it.

Adventures in Chinese Realism (2022)

Anti-ministerialism

Although less antagonistic than Han Fei, Shen Buhai still believed that the ruler's most able ministers are his greatest danger, and is convinced that it is impossible to make them loyal without techniques. Shen Buhai argued that if the government were organized and supervised relying on proper method (fa), the ruler need do little – and must do little, putting up a front to hide his dependence on his advisors. Well aware of the possibility of the loss of the ruler's position, and thus state or life, from said officials, Shen Buhai says:

One who murders the ruler and takes his state ... does not necessarily climb over difficult walls or batter in barred doors or gates. He may be one of the ruler's own ministers, gradually limiting what the ruler sees, restricting what he hears, getting control of his government and taking over his power to command, possessing the people and seizing the state.

Prince Han Fei includes Shen Buhai under his own doctrine of Shu administrative technique, as including Xing-Ming, or form and name, alongside the power over life and death. His Xing-Ming names (ming) ministers to office, comparing ministerial proposals (ming) with results (Xing, form) for appointment and performance monitoring. Han Fei addends Shang Yang's automatic reward and punishment to the method.

Han Fei's 'brilliant ruler' "orders names to name themselves and affairs to settle themselves."

"If the ruler wishes to bring an end to treachery then he examines into the congruence of the congruence of xing (form, or result of the proposal) and claim (ming). This means to ascertain if words differ from the job. A minister sets forth his words and on the basis of his words the ruler assigns him a job. Then the ruler holds the minister accountable for the achievement which is based solely on his job. If the achievement fits his job, and the job fits his words, then he is rewarded. If the achievement does not fit his jobs and the job does not fit his words, then he will be punished

Han Fei presents Qin reformer Shang Yang, known for penal law with harsh punishments, as the opposite component of his doctrine. That being said, Han Fei does not seek to simply implement Shang Yang's laws or policies. Considering the officials bent on usurping the throne, Han Fei uncompromisingly opposes a subversion of the law to the detriment of the people and state, famously criticizing Shang Yang for paying insufficient attention to governing the political apparatus. With shu aiming to limit the ministers power relative to the ruler, the publicly named fa of Shang Yang limits their power over the people, punishing ministers who abuse the law with the given law. Tao Jiang quotes:

Judging from the tales handed down from high antiquity and the incidents recorded in the Spring and Autumn Annals, 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. (Watson trans. 2003, 89)

shi

p275 birth of an empire

Sima Tan's fa school

The Records of the Grand Historian gloss Shang Yang (Gongsun), Shen Buhai and Han Fei as adherents of the doctrine of xingming 刑名. With fa earlier traceable to Guan Zhong, and Xing-Ming Deng Xi, they subsequently originate in the hermeneutics of the Mohist and later school of names, Xing-Ming as a component of Shu administrative technique represent the doctrines of Han Fei and Shen Buhai as received historically, with Shen Buhai as prior prime minister of their native Hann state.

Xingming "names" (ming) ministers to office on the basis of their speech (ming), comparing their proposals with results (xing, or form) as a function of their office. Shen Buhai actually uses the earlier school of names ming-shih, or name and reality. In contrast to Han Fei, Shen Buhai demonstrates no advocacy of punishment, making use of it as administrative detail alone.

Shu, or method/technique, as the most frequently used term to describe Shen Buhai's doctrine historically, does not appear in the Shen Buhai fragments. Shen Buhai uses fa quite often. Han Fei and Li Si (the latter as quoted by Sima Qian) quote Shen Buhai as using fa in the sense of what Sinologist Herrlee G. Creel translated as method, but never law. A.C. Graham takes Han Fei's shu as "distinguishing between law as public and method as private", sharpened by the contrast between the two, calling method the arcanum of the ruler. Sinologist Goldin takes it as self-serving syncretism.

Although Shang Yang, a reformer of the Qin state, has a names practice, he is not associated with their particular method of Xing-Ming in examination. Nor is Shen Dao, although he is compared with them modernly. Associated with penal law in the Han dynasty, but never bureaucratic organization, Gongsun's administration may be associated more broadly with agriculture and war. Associated with bureaucratic organization, but never penal law prior Han Dynasty gloss, Shen Buhai issued regulations or laws, but did so haphazardly, without repealing the older ones. Hence, in contrasted gloss to Gongsun Yang, he "lacks fa."

Graham in reitertating Creel is brief, Han Fei sees Shang Yang's thought as centered on law (fa) and Shen Buai's on 'methods' (fa/shu). In chapter 43 Han Fei declares law and method both indispensable. In chapter 40 he presents Shen Dao as giving central importance to shi (situation authority), which some took as evidence of a third tendency preferring shi or power to fa. Howewver, fa is prominent in the Shen Dao fragments. Xun Kuang associates fa with Shen Dao and names Shen Buhai for shih.

Creel's branches of the Fajia

Working with their term but not himself the school of names, Creel's early work only took the individual Fajia's figures as schools in the sense of their prominence and influence, with emperors and reformers referring back to them and their methods. Or, they were schools in the sense that their works could not have been written by one person. Fajia, however, is often modernly not considered a school, and the category is rare in academia. It was invented in the Han dynasty and projected backwards, with other figures included later. Pines considers the question of who actually belongs to it irrelevant, because no one ever called himself a Fajia.

Because those advocating policies derived of Shang Yang or Shen Buhai often did not endorse each other's views, Creel advised that the Shen Buhai group be called "administrators", "methodists" or "technocrats", in contrast to the more "Legalist" Shang Yang. Where not excluding Shen Buhai or otherwise abandoned, Legalism and Fajia instead continued with increasing criticism, so that Pines simply calls them the fa tradition and fa thinkers, with fa as often referring to "standards, models, norms, methods”.

Where not simply syncretic gloss, the combination of administrator Shen Buhai, who disadvised punishment, with harsh Legalist Shang Yang, would be employed as a Han dynasty slur to combat regulation of the feudal lords and ministers, despite Han dynasty reformers often advocating against punishment. Although most of the figures added to the Fajia were influential, they were probably never an organized or self-aware movement in the sense of the Mohists and Confucians.

The Qin empire's laws were primarily administrative, with fa referring primarily to standards, models and norms. Only derivatively including penal law as adjunct to li ritual, fa as comparative model manuals in the Qin empire guided penal legal procedure and application based on real-life situations, with publicly named wrongs geared to punishments. 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. By contrast, detailed rules tightly regulate grain, weights, measures, and official documents.

Villainizing the first Emperor while adopting Qin administration, a confused revulsion against the Qin occurs in the Han dynasty, centering on Shang Yang and Han Fei as espousing rigorous law and punishment. The Han dynasty scholar Liu Xin assigns them a fictional origin in an ancient ministry of criminal justice. The Han dynasty ultimately takes the Qin dynasty as having practiced these.

Most writers considered Legalism sometimes inaccurate by 1992. Though still seeing some articles in it's time, the category had already fallen into disrepute by 2003 as an anachronism invented in the Han dynasty. Shang Yang has generally been taken as the most 'Legalist' of them, but also addresses statutes and other questions from an administrative standpoint; the more bureaucratic Han Fei advocates his law, with critique. While the term has seen some conventional usage in recent times, such as in Adventures in Chinese Realism, the reasons for avoiding it date back to Creel's early work on the subject. Sinologist Yuri Pines takes fa to still be accurately translated as law in many cases, but dropped the term Legalism in the Stanford Encyclopedia's 2023 edition, in favor of the fa tradition.

Wu Wei

For Xun Kuang, as the purported teacher of Han Fei and Li Si, the Warring States period would come to expect that a true or sage monarch would ensure perfect universal order and compliance, considering an unrivaled, all-powerful, universal ruler necessary for peace. Although achieving victory by conquest, the Qin would claim that they had brought the wars to an end. On the other hand, the period expects mediocre rulers to delegate.

Han Fei, Goldin says, does not appear to anticipate objection that his program effectively allows ministers to set the agenda. As opposed to a true or sage monarch, Han Fei's mediocre ruler may be allured by his advocacy that, reducing his activity, he can attempt to manipulate the ministers to claim their accomplishments as glory and fame for himself. From the perspective of those under him, the reduction of his activity would make him less of a burden.

In the Confucian Analects, as quoted by Han Fei's predecessor in prime minister Shen Buhai, wu wei at basic simply means to leave ministerial affairs to ministers. The ruler's separation may enhance his charisma, and his reduced activity may allow him time to rule, inasmuch as one man can rule. Goldin relates that it may have always connoted a suppression of private activity, but Han Fei's focus is more primarily that of ministers and even the king himself.

Confucianism aside, texts like the Zhuangzi also rarely, let alone simply, suggest that ordinary people are able enhance their power through wu wei, while the Daodejing is if anything a later text. Hence, whatever Han Fei may say to convince his employer that wu wei as a tool of power, the broader literature lacks totalitarian connotation for it until the Han dynasty, in Huang-Lao literature.

In contrast to the mediocre ruler, while Shen Buhai and Han Fei expects the ruler will be average, Winston emphasizes that Han Fei frequently addresses himself to the enlightened, benevolent or sage ruler. Han Fei says "If the ruler is stupid and upholds no rule, ministers will act at random", enhancing their wealth and power, and eventually breeding chaos. Han Fei's enlightened ruler will investigate order and chaos, promoting clear laws (fa) and severe penalties, even rescuing "all living beings from chaos".

Winston does not consider Han Fei's focus on fa abstract or an accident. Although potentially useful, laws and administrative methods are not necessarily always the best choice simply for the purposes of power. Law is practically and consciously chosen for broader purposes. The laws of Han Fei's Hann state were in dissaray; his predecessor in Shen Buhai issued contradictory laws following its founding, without repealing the old ones. Along with the administrative method of Shen Buhai, Han Fei advocates the fa or law of Shang Yang, with critique. Although like Shen Buhai still primarily bureaucratic, Han Fei is reasonably concerned with law (and order) itself, at least in a limited sense, and not simply power or the interest of the ruler.

While Han Fei's mediocre ruler practices Wu Wei, his enlightened ruler also practices wu wei, busying himself with checking reports and investigating job performances, strictly adhering to fa (method /standards) to reward, promote and punish. Only rewarding those who perform their jobs properly, the ruler will supposedly dominate his properly rewarded ministers, enhancing his power. Or, he will play an effective institutional role without obstructing, exposing himself to manipulation and criticism.

As Tao Jiang recalls of Winston, it would be "outside the realm of possibility within the traditional imaginaire of monarchy" for Han Fei to effectively restrain the power of an abusive monarch. In contrast to Confucians and the mandate of heaven, Han Fei rejects the legitimacy of overthrowing the ruler. Yet, he does not suggest much chaos as resulting from his replacement. He even has a chapter advising ministers to speak to the king disingenuously. The enlightened ruler will avoid their traps by dispensing with his own personal abilities. Adhering to fa (measurement, laws and methods), he will delegate to Han Fei and his fellow impartial institutionalists, who perform their jobs properly and refrain from suggesting his overthrow.

Han Dynasty slurring

The School of Names (Xingmingjia) was a school of Chinese philosophy that grew out of Mohism during the Warring States period in 479–221 BCE. A contemporary of Confucius and the younger Mozi, Deng Xi (died 501 BC) is reported to have drawn up a code of penal laws. Deng Xi is cited by Liu Xiang as the originator of principle of the xíngmíng (刑名), or ensuring that ministers' deeds (xing) harmonized with their words (ming). However, Xing-Ming as it would be understood in Han dynasty "Fajia" or "School of law" literature was introduced by Shen Buhai.

Although Han Fei, in the Warring States period, advocates harsh punishment, Emperor Wen of Han is noted for reducing punishments and making capital punishment rare. Sima Qian adds Shang Yang to Xing-Ming in the Records, glossing together Shang Yang, Shen Buhai and Han Fei as followers of the doctrine of Xing-Ming. Not being a bureaucratic organizer, Shang Yang is not known for it, but glossing often occurred in Chinese texts. It later appears in the Huang-Lao text Huainanzi; it is not a certainty that the addition is conspiratorial. Their later grouping under the Fajia aside, it would serve as secondary historical moniker for the figures.

Pairing Shang Yang and Shen Buhai, Sima Qian names reformers like Jia Yi as an advocate of Shen Buhai and Shang Yang in the records. Advocating for reform, although a past student of the Qin dynasty official Li Si, Jia Yi wrote the Disquisition Finding Fault with the Qin, and as Sinologist Creel notes was probably not an advocate of Shang Yang. Moreover, centered on agriculture and war, Shang Yang's exclusivist preoccupation with agriculture had been abandoned by the Qin, and his punishments reduced.

With the encouragement of Emperor Wen, Jia Yi drew up "complete plans for revising the institutions of government and reorganizing the bureaucracy", which Emperor Wen put into effect. Exiled by Emperor Wen under factional pressures to the southern Changsha Kingdom, Jia Yi was sent to tutor one of Wen's sons, Liu Yi/Prince Huai of Liang. With the Han dynasty shifting favor from Huang-Lao to Confucianism, the orthodox interpretation of the fajia becomes Confucian and more critical. It would "be quite popular and respectable to oppose the harsh use of penal law", and apart from disliking the managerial controls of xingming itself, those otherwise disliked by the Confucian orthodoxy, with some philosophical association, would also often be slurred as fajia, like the otherwise Confucianistic reformers Guan Zhong and Xunzi, and Sima Qian's own Huang-Lao faction.

Over the Han dynasty, Xing-Ming would sometimes be used in reference to Han Fei and Shang Yang, rather than Shen Buhai and Han Fei, the school of names, or their technique. Although Sima Qian appeared to be aware of the differences between Shen Buhai and Shang Yang, Creel suggests that this would seem to disappear among scholars as early as the Western Han dynasty. Xing (form/results) would be glossed as punishment in the later part of the Han dynasty, coming to encompass the prohibitionist texts, or penal law, down to the fall of the Qing dynasty. Its meaning would be so completely lost that Duvendak, 1928 translator for the Book of Lord Shang, would translate Xing as criminal law.

The historiographer Liu Xin (c. 50 BCE – 23 CE), as a kind of follow up work, assigned the schools as having originated in various ancient departments, portraying the Fajia as having originated in what Feng Youlan translates as the Ministry of Justice, emphasizing strictness, reward and punishment. Its view would be adopted by later Chinese scholars even into the later 1700s. The Western Jin Hanshu commentator Jin Zhuo separates Xing-Ming as xing-jia and ming-jia, with the latter as referring to the earlier school of names, under the retroactive idea of Xing-Ming as a contraction of the schools. The term Xing-Ming reappears in later dynasties, but for the uninitiated, Xing (result of the proposal) becomes punishment, criminal law, or "the school of punishments."

On justice

An earlier original work in Huang Kejian however takes Han Fei's predecessor in Shen Dao as still giving more regard to virtue than Han Fei, as a concept that would be relevant for civic law. While Huang regards Shang Yang's law as aiming to benefit the people, he criticizes the idea of an ancient Chinese 'Legalist' justice, at least as compared to the ancient Roman sense. While the Chinese tradition is broader, fa itself, as simply measurement, lacks consciousness of the idea of individual rights. Fa did not therefore anciently tend to develop toward civic institutions. As criminal law it is simply penal. As with other scholars, Huang regards fa as otherwise primarily aiming to control officials. Hence, it tends to evolve towards Han Fei's shu administration that had not yet been realized in Shang Yang.

However, Tao Jiang also argues Ren or humaneness to sometimes be better translated as justice.

Contemporary predecessors

Between Mozi's background as an engineer and his pacifist leanings, the Mohists became experts at building fortifications and sieges.

Small seal scripts were standardized by Li Si after the First Emperor of China gained control of the country, evolving from the larger seal scripts of previous dynasties.

The 12 characters on this slab of floor brick affirm that it is an auspicious moment for the First Emperor to ascend the throne, as the country is united and no men will be dying along the road.

Although it's archaeological specifics are difficult, the Confucian doctrine of the rectification of names is of potential relevance for Shen Buhai, as he regardless shares elements that can be found there. As a figure between contemporaries Shang Yang/Shen Buhai and Han Fei, Mencius's fa includes more specific examples of statistics such as temperatures, volumes, consistencies, weights, sizes, densities, distances, and quantities.

The School of Names (Xingmingjia) was a school of Chinese philosophy that grew out of Mohism during the Warring States period in 479–221 BCE. A contemporary of Confucius and the younger Mozi, Deng Xi (died 501 BC) is reported to have drawn up a code of penal laws. Deng Xi is cited by Liu Xiang as the originator of principle of the xíngmíng (刑名), or ensuring that ministers' deeds (xing) harmonized with their words (ming).

However, Xing-Ming as it would be understood in Han dynasty "Fajia" or "School of law" literature was introduced by Shen Buhai. Many in the school of names, slurred as disputers even in the Warring States period, would also have been administrators, just as the Mohists more broadly had sought office. Sima Qian originally classes Shang Yang, Shen Buhai, and Han Fei under the doctrine of xingming, which would serve as a secondary historical moniker for them.

Because, historically, despite the presentation of their opponents, those advocating policies derived of Shang Yang or Shen Buhai did not endorse each other's views, Creel advised that Shen Buhai's group be called "administrators", "methodists" or "technocrats", in contrast to the more "Legalist" Shang Yang. In retrospect, Sinologist Kidder Smith considers Creel half correct: the school of names, slurred as sophists, were also administrators.

On the schools

Although the Shang Yang, Shen Buhai and Han Fei are still said to have contributed greatly, the prominent writers on the Qin have suggested that it may be an exaggeration that they played a pivotal role in the establishment of China's bureaucracy as great men. With Han Fei himself a late figure, their means can still be found in at least less developed or focused form amongst the earlier schools, and Shang Yang himself is said to have built upon Li Kui's's Canon of Laws, imported from his own native state of Wei.

Confucianism contains less formulaic predecessors for fa. Although Confucianism does not much elaborate on fa, it is early illustrated in the Confucian canon as a circle as standard or identifier for other circles, and adopted as a standpoint for administrative appointment. Fa can refer to any "institutional structure or administrative process". Shang Yang famously uses fa as law, while Shen Buhai uses fa as administrative method, with Shu as Han Fei's distinctive. It is defined in the Han dynasty Book of Changes as "to institute something so that we can use it".

Han Fei, at the end of the Warring States period, is technically advanced to an unprecedented degree, but Xun Kuang is just behind him. Han Fei and Shen Buhai are more politically focused, but growing out of Mohism, their school of names predecessors are still rooted in administrative detail, and used the same kind of method with the same name (Xing-Ming). Han Fei and Shen Buhai are more narrowly administrative, bureaucratically dealing in the word and substance of officials, while the school of names was more broadly philosophical, dealing with names and realities. But some if not most of their prominent officials still used the method in the 'administrative strategy' of managing men. They are just not yet as bureaucratically focused.

Basic three elements view

While there are other early works like Arthur Waley, earlier originating in Liang Qichao, Tao Jiang recalls the three element as essentially the view of the subject from Feng Youlan (1948) until Herrlee G. Creel (1961-1974). For reasons that will become apparent, Tao Jiang argues against it in favor of the figures common focus on fa. While the three elements exist, Chinese law expert Randall Perenboom takes the view as having been considered simplistic before the turn of the century, with Zhengyuan Fu employing it for the sake of the reader in 1996. Tao Jiang's argument against the three elements lacks an actual opposition: also arguing against the view, his purported opponent in Sinologist Goldin, prominently recalled in Pine's Stanford Encylopedia, only argues that Shang Yang's reforms were broader than fa.

Feng Youlan accurately if simply expounds fa as law, regulation or pattern, shu as the method or art of conducting affairs and handling men (statecraft), and shi as power or authority. He connects fa with Gongsun Yang, shu with Shen Buhai, and Shi with Shen Dao, with each supposed to have a group preceding Han Fei. However, while Creel and other early scholars would take Shen Dao as a relevant Daoistic forebear, with some potential influence in Daoism, Creel saw no recognizable following for scholar Shen Dao, and as A.C. Graham noted, Shen Dao was himself focused on fa in the Shen Dao fragments.

Creel and Graham explain shu as a representative term for Shen Buhai's fa, Graham terming shu the aracanum of the ruler. Shu, as the most frequently used term to describe Shen Buhai's doctrine historically, does not appear in the Shen Buhai fragments. While Shen Buhai has a disorganized law, Han Fei and Li Si (the latter as quoted by Sima Qian) quote Shen Buhai as using fa in the sense of what Creel translated as method, but never law. With fa as a given commonality, Pines and Tao Jiang term them 'fa thinkers', and Pines Stanford Encyclopedia terms them the 'fa tradition.'

While still not a complete view, Sinologist Chris Fraisers's elements in the Oxford (2011) would appear largely accurate, if lacking in certain details, and are condensed and addended here with an inclusion of it's relevant referenced early scholars.

Fraser defines Han Fei's Fa as clear, explicit, specific, publicly promulgated standards of conduct encompassing laws, satisfactory job performance, military and bureaucratic promotion, and regulation of the general population. Reiterating Hansen, Fa prevent deception of the ruler, their transparency prevents official corruption or abuse, and their exactness and public knowledge prevent bending or violation, controlling the population and limiting official power. Fa eliminates differences in treatment between the population and the bureaucracy or aristocracy.

Fraser defines Han Fei's shu as managerial arts or techniques constituting undisclosed and un-codified methods (fa). Reiterating Graham, as essentially a private variety of fa, shu is in part an inheritance of the Mohists who advocated meritocracy, and the doctrine of the rectification of names, which is shared with the Confucians and others. As Creel emphasized, they (Shu or Shen Buhai's fa method) include merit-based appointment, strict accountability in relation to job titles, and the employment of reward and punishment ensuring the performance of duties (although the earlier Shen Buhai lacks penal usages). (As derivative of his predecessor Shen Buhai and earlier seen in the Xing-Ming school of names), officials are assigned duties according to their administrative proposals, whose doctrine under Han Fei is called Xing-Ming.

Fraser elaborates Han Fei's shi as connoting advantageous position, wielded to implement the standards of conduct and administrative techniques. Based on the idea of the average ruler, it contrasts with the Confucian ideal of rule by moral worth and moral authority, which Han Fei sees as "foolishly unrealistic", condemning the state to constant misgovernment awaiting a sage king. Moral authority and charisma cannot control a large populace. Few people can be governed without institutional power.

With Hansen's iconoclastic work including a three elements view focusing on shi in 1992, the Oxford, a contemporary review intended to include an original argument, termed Fajia a misnomer, with not all of it's thinkers focused on fa. Fraiser does not elaborate. With an emphasis on shi, Pines does not consider a three elements view of the subject accurate, only bothering to comment in a specialist document without reference to Fraiser.

While Shi has a broader historical context, and certainly sees commentary, given it's actual prominence it's presence and influence in early scholarship is extraordinary, including a three elements view. These interpretations consist in Shi's appearance in the Han Feizi in chapter 40 with reference to Shen Dao. Also focused on fa, Shen Dao only uses the term shi twice in his fragments. At basic, Pines takes Han Fei as attempting to build on the argument, taking shi as a "significant theoretical innovation" safeguarding the ruler’s authority, associated with Shen Dao but maturing in the Han Feizi. Pine's Stanford Encyclopedia only mentions the term once, otherwise also only once referring to the argument under the colloquial moniker of "Chapter 40."

Shen Dao

His influence on older exploratory scholarship on the subject is potentially distorting. Early scholarship following Arthur Waley often took a co-equal three elements (fa, shu, shi) view as introduced by Feng Youlan (1948), despite the statement (see appendix). Attempting to bring their influence as central back into the Qin dynasty, and emphasizing their commonality as fa thinkers, Tao Jiang reiterates argument against the in favor of Creel, whose framework sidelines Shen Dao and shi, and takes shu as a variety of fa. He then argues in favor of Han Fei and Shen Dao's shi, attempting to argue for Qin totalitarianism on it's basis. Early recalled in Pine's fa tradition in dropping the Fajia and Legalist categories, Goldin's Persistent Misconception takes Legalism's problems as dating back to Creel

Legalism briefing

With other texts only translated later, Science and Civilization in China (1956) took the "central conception" of fa as positive law expounded with "great clarity by Gongsun Yang in the Shangjunshu", under a legal positivist interpretation.

Earlier cited by Pines, Goldin takes the reasons for avoiding the term Legalism as dating back to Creel, who says:

When Sima Tan used the name fajia for this school, apparently for the first time, he may not have intended fa to mean merely “law.” He was clearly aware that the school had two emphases, and may have availed himself of the fact that fa means both “law” and “method.” It has both of these senses (sometimes simultaneously) in fajia literature, and even in the Shangjunshu. “Method” seems to be the sense in which Shen Buhai used fa, in all of the quotations of his words known to me. The Han Feizi 韓非子 quotes Shen as saying: “What is called ‘method’ (fa) is to examine achievement [as the ground for] giving rewards, and to use ability as the basis upon which to bestow office.

A.C. Graham took Han Fei's Shu as "distinguishing between law as public and method as private", sharpened by the contrast between the two, calling method the arcanum of the ruler.

Goldin recalls Creel as "rightly emphasizing" Xingming as Shen Buhai's "most important contribution". Annotating in Creel that Shen Buhai actually uses the earlier Mingshi while lacking punishment, Goldin emphasizes Shen Buhai and Han Fei's shared concept, comparing an official’s “performance” (xing) and duties or “title” (ming), as requiring "no legal consciousness whatsoever."

Tao Jiang in particular makes a defense of the Fajia's category modernly, while Pine's Stanford Encyclopedia proffers the fa tradition as a neutral general category, although still accepting Legalist interpretations as having explorative value.

Lack of religious content

Narrowly political by their nature, and rarely mentioning a divine or supernatural power, the Fajia or 'Legalists' were also sometimes seen as homogeneously anti-religious and authoritarian by some semi-modern scholars from China. Julia Ching believed it was "utterly devoid of any religious belief, moral sense, or sensitivity to nature", and made the case that the ideal Chinese sage-king was seen as someone who should operate without excessive mysticism or bias by not favoring any one spiritual tradition, explaining the problems various religions have faced in or because of dynastic courts. Sor-Hoon Tan, a scholar who generally agreed with Ching's ideas, has mentioned that some Legalists have discussed Heaven and tried to be religious innovators. Legalist–Taoist syncretism has occurred, and a belief in Legalism that was quite influential was salvation if one followed or executed laws correctly.

Fajia and the Warring States

As for the Fajia, Sima Tan says:

The fajia are strict and have little kindness, but their alignment of the divisions between lord and subject, superior and inferior, cannot be improved upon. … Fajia do not distinguish between kin and stranger or differentiate between noble and base; all are judged as one by their fa. Thus they sunder the kindnesses of treating one's kin as kin and honoring the honorable. It is a policy that could be practiced for a time, but not applied for long; thus I say: “they are strict and have little kindness.” But as for honoring rulers and derogating subjects, and clarifying social divisions and offices so that no one is able to overstep them—none of the Hundred Schools could improve upon this.

and would only be considered a school starting in the Han dynasty, with Sima Tan and Sima Qian essentially inventing the Fajia in the Shiji. No one ever called himself a Fajia, and of it's four prominent figures, Shang Yang was the most Legalist of them, with Han Fei only advocating his law. 

, it would be essentially obscurative and anachronistic if taken as a historical category for the Warring States period. The Zhou sphere of central China regarded the Qin itself to be to the remote west, and produced limited commentary on it; it's early conquest was in the similarly remote Sichuan, and subsequent conquests rapid, while the Qin dynasty marks the end of the Warring States period.

Chinese scholar Huang Kejian takes Zichan, as an early codifier of state law, as a 'Legalist' pioneer, but only posthumously. More broadly, the Guanzi text, posthumously attributed to Guan Zhong, dates to the second to fourth centuries B.C., and the Book of Lord Shang itself to 240 B.C. (one hundred years after death) so what would be termed the Fajia or 'Legalism', as a philosophy, might only be considered "recognizable" in the Warring States period, around the time of Han Fei and Li Si. Although to some extent representative of their figures, the philosophies would only be consolidated posthumous to the eras in which they lived. However, those parts of the Book of Lord Shang which come long after do still clearly originate from Qin.

Goldin does not take them as having real lineages in the sense of the organized schools. Creel conventionally speaks of Shen Buhai and Shang Yang schools in the sense of tracing lineages of influence into the Han dynasty. Hansen conventionally speaks of a Han Fei school in the sense that the Han Feizi's chapter on the Laozi has, since at least before Creel, not generally been regarded as written by Han Fei (see Huang-Lao section). A commentary in the Han Feizi recommending the reader burn one's books derives from one such later-addended chapter, “Illustrating Lao”. As of 2022, Pines still does not regard the Han Feizi proper as evidencing Daoist influences outside of a few tertiary chapters. The Daoists are barely known until the Han dynasty. While it is presumably possible that the First Emperor burned books, narrative that he did so on the chapter's advice would belong properly to Sima Qian; evidence would point against Han Fei having written it. Nor does the first Emperor follow the Han Feizi's advice for a passive ruler.

• Pines 2009. p109 Envisioning Eternal Empire
• Goldin 2011. p5. Persistent Misconceptions
• A. Galvany 2013. p88. Dao Companion to the Han Feizi

https://books.google.com/books?id=ow5EY_upzRkC&pg=PA88

• https://china.usc.edu/calendar/burning-books-and-killing-scholars-representing-atrocities-first-emperor-china
• Hansen 1992 p345,350,360,401
• Yuri Pines (2022) Han Feizi and the Earliest Exegesis of Zuozhuan, Monumenta Serica, 70:2, 341-365, DOI: 10.1080/02549948.2022.2131797
• Graham 1989 p268. Xun Kuang; Guanzi was classed as Daoist in the Han bibliography. p374. Daodejing. 376. Zhuangzi. p377. No one is named.
• Kenneth Winston 2005
• Dao Companion to the Han Feizi. Goldin</ref>

Han dynasty

Sima Qian does not name anyone under the schools. The figures would only be assembled as the Fajia in the Hanshu, or Han History, one hundred years after Sima Qian. As it was not originally an existing category to which they belonged, it only gradually comes to mean something like Legalists in the era of the Hanshu, through an association of the figures with Shang Yang. Confucius originally considers Guan Zhong more or less Confucian. Early taking him to be a Daoist, with proto-Daoist elements in the Guanzi, Han literature would go on regard the early Spring and Autumn period figure to be a forefather of the Fajia, but the Han History lists Li Kui, Shang Yang, Shen Buhai, Shen Dao, and Han Fei under the School of Fa (Fajia).

While Li Kui is a predecessor of Shang Yang in their native state of Wei, the figures listed are otherwise those of the Han Feizi. While, as Han Fei demonstrates, some syncretism or philosophical grouping is possible, Creel only considered Han Fei's combination very imperfect, with the figures themselves having remarkably different philosophies. The association is likely not coincidental. As Pines recalls, the growth of the Fajia into a category occurs through a "pairing of Shen Buhai and Shang Yang, and adding Han Fei himself", becoming "common from the early Han dynasty."

With a description that is not particularly endearing, it's category, in Creel's historical outline, is not originally born out of some consideration or respect to its forefathers. Shang Yang and Han Fei are sometimes referenced together instead of Shen Buhai and Han Fei. Its figures are first censured under Huang-Lao factional pressures, then under Confucian factional pressures after they were brought into the administration under Gongsun Hong, as including a turning against the aristocratic Huang-Lao. The category is cobbled out of the figures of the Han Feizi, censured, and later assigned an origination in a fictional ancient criminal department.

As indeed relevant, Creel took the administrative controls representative of Shen Buhai, and to a lesser extent Shang Yang, as a basic difference with the Confucians, who were not very fond of regulation, despite Han dynasty reformers often arguing against penal punishment. Where it doesn't simply represent syncretic gloss, Creel takes their historical association as having been deliberately promoted to cause confusion.

Creel saw the term Legalism to "contrast strangely" with Han Fei blaming Shen Buhai, as the opposite of his doctrine from Shang Yang, for concentrating all of his attention on administrative technique and neglecting law.

Creel's branches of the Fajia

Promoting both categories, as Tao Jiang recalls, "Creel blames Han Feizi for associating Shang Yang and Shen Buhai in Han Feizi's own works, which creates the categorical confusion between fajia and Legalism."

Following Creel, A.C. Graham's work takes the position of the Han Feizi in his discussion of the "school".

Han Fei sees Lord Shang's thought as centred on law but Shen Buhai's on 'methods' (shu), techniques for controlling administrators, a distinction born out by Shang-zi (Shang Yang) and the remains of Shen Buhai; he himself declares law and method both indispensable. Elsewhere he mentions Shen Dao as giving central importance to the power-base (shi); some take this as evidence of a third tendency preferring the power-base to law. However, law (fa) is prominent in the Shen Dao fragments. Xun Kuang (who seems not to know Shang-zi), associates law primarily with Shen Dao, and names Shen Buhai as doctrinaire of the power-base. No doubt the relative importance of law, method, and power-base for the different thinkers was a matter of emphasis. (Graham)

only shu numbers does, which Creel took as evolving towards technique. Graham takes Han Fei's shu as "distinguishing between law as public and method as private", sharpened by the contrast between the two, terming method (or "technique") the arcanum of the ruler. The iconoclastic Hansen still took Han Fei as considering shu nonsensical without fa objective standards, while Goldin takes it as an appropriative atomization. While representative of Shen Buhai, it does still appear in the Shangjunshu.

Goldin suggests Creel's own work as insufficiently backed for his distinctions, but that he needed only turn to Shen Dao. While Graham simply translated Shen Dao's fa as law, and although Shen Dao and Han Fei make some usage of fa as akin to law, with reward and punishment, the two generally use fa in much the same sense as Shen Buhai, that is, as an impersonal administrative technique. With a particular quotation from Han Fei as example:

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. 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.

Devoting his essay to arguing against the term, Goldin did not consider them to be primarily Legalist. And although Shang Yang is the more 'Legalist' of them, with fa as law prominent in the Shangjunshu, Shang Yang, Goldin says, addresses statutes and other questions primarily from an administrative standpoint. Despite his own advocacy, in an apparent turnabout from old Legalist interpretation, Creel, and Han dynasty reception, Tao Jiang promotes Shang Yang as a bureaucratic pioneer to stand alongside Shen Buhai, with the radical innovation of fa or impartial regulations as law, and a greater contemporary role in the unification of China. While he lacks the management of Shen Buhai, and Qin's focus in agriculture and punishment are temporary, Tao Jiang's orientation is not at least half wrong: Pines takes impersonal administration as fa's second most common meaning in the Book of Lord Shang.

Shen Dao translator Erik Lang Harris considered the figures appropriately grouped together within the Fajia as political realists. Schwarz and Hansen considered Shen Dao relevant and potentially influential as a Daoistic forebear, and Schwarz still took Shen Dao's placement in the Fajia seriously, at least in dialectical opposition to Creel, supposing him as "having come to be regarded as one of the fathers of Legalism". His discussion is philosophical rather than historical.

Goldin says: "if anyone deserves to be recognized as a member of fajia, it is Shen Dao, who was criticized by Xunzi for being 'beclouded by fa'". But Goldin does not endorse the category, and as he recalls, Creel did not much discuss Shen Dao because he did not find followers for him. . There is little means in this to suggest him as having come to be regarded as "one of the fathers of Legalism", included with consideration and due importance. He is a scholar mentioned in the Xunzi, Han Feizi and Outer Zhuangzi, with a limited academic body suggesting influence in Daoism, and much made of him for an interpretation of the subject in older academic works. Tao Jiang attempts to strengthen him by increasing Han Fei's reception.

Sinologist Kidder Smith accepts Shen Buhai as having ultimately been included in the Fajia due to being a figure in the Han Feizi; while his representative administrative method is of historical importance, and he is specifically referred back to, the individual may otherwise have been earlier forgotten or undifferentiated. He is suitable as more strictly political in what remains of him, but he is not a unique father. His elements are earlier found in Confucianism, Mohism and the school of names. Recalling Creel, Tao Jiang takes his higher degree of posthumous success among the figures of the Fajia, in the Han dynasty, as due to being less draconian. While Pines cautions against giving too much credit to Shang Yang, Michael Loewe cautioned against giving too much credit to Shen Buhai.

Shen Dao is mentioned in the Outer Zhuangzi, and Han Fei discusses his secondary subject of shi or "situational authority" in Chapter 40 "for mediocre rulers". Pines argues at basic that Han Fei attempts to build on the argument, that is, Han Fei is not antagonistic towards him. Despite the statement, the chapter, or by reference to shi itself, has been used to buttress various interpretations, including Graham's dialectics attempting to strengthen the by then old interpretion of Legalism, it's subsequent opposite in Hansen's charismatic autocracy devoted to arguing against him, Tao Jiang's totalitarianism, or Schneider's early Daoist explorations.

School of Names

Although Shang Yang turned "the state of Qin into arguably the most formidable military machine in China’s long history", his "simplistic emphasis on agriculture" and suppression of commerce "was eventually abandoned by Qin." Seeing remarkable similarities between Shen Buhai and the Han Feizi, noting imperial China as never fully accepting the role of law and jurisprudence, and seeing the Shangjunshu as also sometimes using fa administratively, in Creel's opinion, Legalists did not play a great role in the formation of traditional Chinese government.

While Shang Yang has later reform influence, and likely a greater immediate role in the unification of China, with reference to Creel, Pines still takes the fa tradition's "lasting contribution to China’s administrative thought and practices" to be in the staffing and tight monitoring of an extensive bureaucracy. Creel took the managerial Shen Buhai branch as more foundational in this regard, with influence extending into the Han dynasty's administrative founding and beyond. In retrospect, Kidder Smith considers Creel half correct: the school of names, slurred as sophists rather than Legalists, were also administrators.

Often having been taken in the west as simply amoral, Chinese scholar Peng He positively associates Deng Xi with Chinese Legalism, which she defends in connection with the Chinese legal tradition. The primary categorical difference, modernly, is that Fajia, only later coming to mean something like Legalism, is a posthumous invention of Sima Qian, who does not name anyone under the schools. More typically associated with its Warring States figures, the Hanshu does not list Deng Xi under it, but association is posthumous and ideological.

K.C. Hsiao's editor in Frederick W. Mote early recalls Creel's attempt to assert a Confucian origin as a later interpolation (which would give more credit to Shen Buhai). But the Confucian rectification of names concept is still 'functionally' resonant throughout the Analects. The Analects insist that names must correspond correctly to reality. John Makeham characterizes early school of names thinkers as more resembling the Confucian rectification of names. He takes Xun Kuang's Xing-Ming as Xing-Ming's second phase, and Han Fei's Xing-Ming its third.

Hansen notes Han Fei as sometimes antagonistic towards language devices, while Makeham differentiates Han Fei's method from his school of names predecessors as representing an unprecedented mechanical advancement. However, he places less emphasis on his predecessor in Shen Buhai. Although Shen Buhai may very well have been foundationally influential, Creel or Kidder Smith did not believe that he would not necessarily have been differentiated if not for posthumous association.

Whether Shen Buhai much associated among their league or not, the importance of words and names to the period cannot be overstated, let alone for administration. Related at the general level, Makeham asserts that the school of names ought to be differentiated from Shen Buhai and Han Fei, but relies on an argument that their usage is more specific to functionaries, while that of the school of names concerns names and reality more broadly.

While Han Fei is more strictly concerned with political applications, as stated by Kidder Smith, Logician Gongsun Long similarly enjoyed the support of rulers, while Hui Shi was, like Shen Buhai, a prime minister, but in the state of wei. One might think Gongsun Long's white horse paradox semantical, but Su Qin (380–284 BCE) considered it a component of Xingming administrative strategy. As Creel in part details, Han Fei and Shen Buhai both do still have posthumous individual influences upon emperors and reformers as referring back specifically to them, so that their historical line is not always simply that of Xing Ming. But Creel did not work with the school of names and this is not always the case. As part of his broader work, Makeham discusses a late Han dynasty reform philosopher as more specific to school of names influence.

Work comparing the figures with the school of names is unfortunately lacking; Tao Jiang's work asserts the Fajia's category, and compares Han Fei with Mohism, but not the school of names. A white horse strategy is found in the later chapters Han Feizi, along with other similar strategies:

Once Tzu-chih, Premier of Yen, while seated indoors, asked deceptively, "What was it that just ran outdoors? A white horse?" All his attendants said they had seen nothing running outdoors. Meanwhile, someone ran out after it and came back with the report that there had been white horse. Thereby Tzu-chih came to know the insincerity and unfaithfulness of the attendant.

Once there were litigants. Tzu-ch'an separated them and never allowed them to speak to each other. Then he inverted their words and told each the other's arguments and thereby found the vital facts involved in the case. Canon VII.

Reportedly receiving the Han Feizi, the stele of the First Emperor regardless list Xingming amongst his accomplishments.

Three elements view

As at least suitable to a basic introduction, with Creel, Graham and Hansen as reference, along with works on the Mohists, Sinologist Chris Fraser in the Oxford Handbook of World Philosophy (2011) elaborates a modern three elements view of the fajia (or 'Legalists') as attributable to Han Fei. Along with early figures like Arthur Waley and outdated Legal positivism, Tao Jiang recalls the three elements as essentially representing the view of the subject as introduced by Feng Youlan (1948) until the work of Sinologist Herrlee G. Creel (1970/1974).

In support of his rule of man vs rule of law reform arguments, Liang Qichao early developed an antagonist three elements view by interpreting Han Fei as opposing his forebears in Shen Buhai and Shen Dao, with "true" Legalists rejecting the former and following fa, connected with Shang Yang as law. Although notable as an early example that China had a reform tradition to draw upon, Liang Qichao received little literary attention in his time, and no one holds the view modernly in the west. Having occasionally been brought up in China, it was refuted by Chinese scholars long ago.

Feng Youlan instead introduced Han Fei to the west as synthesizer. Feng Youlan accurately if simply expounds fa as law, regulation or pattern, shu as the method or art of conducting affairs and handling men (statecraft), and shi as power or authority. He connects fa with Gongsun Yang, shu with Shen Buhai, and Shi with Shen Dao, with each supposed to have a group preceding Han Fei. However, Creel saw no evidence of a recognizable following for scholar Shen Dao, and Shen Dao was himself focused on fa. Creel explains shu as variation on fa. Pines explains the original three elements view as taking an antagonistic view towards Shen Dao, in Chapter 40 of the Han Feizi. Rather, Han Fei attempts to build on Shen Dao's argument.

The Oxford Handbooks "bring together the world's leading scholars to write review essays that evaluate the current thinking on a field or topic, and make an original argument about the future direction of the debate." Fraiser inexplicably reiterates the view, with the unelaboreted assertion of Fajia as a misnomer, with not all of its thinkers focused on fa. Although dated, his reference in Hansen's explicitly iconoclastic 1992 work presented the view with an anomalous argument for shi as primary, but considered shu technique nonsensical without fa objective standards.

Along with Tao Jiang Pines, amongst other items, Sinologist Goldin's earlier Peristent Misconceptions(2011) recalls Creel in opposition to the view. Although Tao Jiang takes pains to reiterate the thinkers as fa philosophers, and recalls Fraiser and Hansen on other points, the three elements would appear to be largely ignored as either a legitimate modern view or argument. Although mentioning Liang Qichao and the elements, discussing shi more elsewhere, Pine's does not give shi or shu prominent place, and addresses the view itself separately, leaving it out of the Stanford Encyclopedia altogether. More modernly, Hansen's work can be compared with an early work in Schneider; direct Daoist evidences themselves lacking, Schneider's exploration compares and interprets the work through its lens, taking Shen Dao's shi as primary for Han Fei. His later work does not.

Administrative turnabout

Identifying Shen Buhai with the School of Names, in retrospect, Kidder Smith considers Creel half correct. The School of Names, slurred as sophists rather than Legalists, were also administrators.

K.C. Hsiao, originally published in Chinese 1945-1946, would appear older than Creel's Legalists or Administrators? (1961). The older workers are to some extent more identified with the standpoint. Hsiao, through translator Mote, comes to the self-same conclusion on the subject's origination, suggesting Legalism as established alternatively by either Shang Yang or Han Fei some one hundred years later. Creel frames Shang Yang and Shen Buhai as two schools, but that they were probably never schools in the sense of the Confucians and Mohists. Graham recalls the lens but argues for Legalism.

The establishment of Legalism would seem to be properly credited to Shen Buhai's discussion of method (shu) and Gongsun (Shang) Yang's concern with law (fa). Shen Buhai was chief minister to Duke Chao of Han, and thus was a contemporay of Mencius. Lord Shang was chief minister to Duke Xiao of Qin. If we take Han Feizi as our representative, who accomplished the great synthesis of Legalism, then the establishment of Legalism must be set another century later, to the period just preceding the fourteenth year of the reign of the First Emperor of Qin (233 B.C.). (Hsaio)

Goldin recalls Creel's assertion that Sima Qian, like Han Fei, was still clearly aware that fa had senses that included both law and administrative method, the latter as associated more with Shen Buhai (and Han Fei).

Associated with penal law in the Han dynasty, but never bureaucratic organization, Gongsun's administration is associated more broadly with agriculture and war. Shen Buhai is associated with bureaucratic organization, but never penal law prior Han Dynasty gloss. Appointed following the collapse of the Jin state, Shen Buhai issued regulations or laws, but did so haphazardly, without repealing the older ones. In Creel's account, the Fajia would only come to mean something like "Legalists" in the era of the Hanshu, through association with Shang Yang.

Following Creel, Goldin takes Han Fei as appropriating Shen Buhai under his own doctrine of shu, which includes reward and punishment, with Shen Buhai as lacking fa. Shen Buhai actually use fa quite often in the administrative sense.

While Han Fei has tactics in later chapters, method itself is concerned almost exclusively with the ruler's selection of ministers, as including performance monitoring. Shang Yang primarily uses fa as law, but while representative of his opposite branch, fa-shu or method-technique appears even in the Shangjunshu, with fa sometimes meaning both law and method even there ("along with a good nature, the fa of the sage compels the faith of the empire").

Tao Jiang contrasts Shen Buhai with Han Fei along Creel lines. Although considering the ministers one of the ruler's greatest dangers, Shen Buhai does not advocate that the ruler should suppress ministers, but seek their cooperation. More than Han Fei, he does not simply consider the ministers potential enemies. Although Gongsun Hong later makes a more general use of them in a Han Fei based discussion, Creel takes Shen Buhai's "following" as more generally different from both Shang Yang and Han Fei. Dong Zhongshu writings in personnel control (Xing-Ming) more resemble Han Fei in their technical advancement, but like Shen Buhai disadvise punishment. Xing-Ming becomes and is obscured as criminal law through association with Shang Yang.

The elimination of harm

Although Shang Yang and Han Fei advocated a harsh penal law in their time, Sinologist Makeham did As Hansen notes, both Mohist and later Confucian (Xun Kuang) philosophy endorse punishment.1

precise Hansen regarded their extremes of reward and punishment under a Shang-Yangian ; it does not primarily aim at a legal system of graded punishments. Hansen highlights punishment, in the broader Chinese tradition, as only one tool; the late Gunazi text, as with Mozi, regards people as responding to even just precise administrative measures and a ruler-like attitude. Benjamin Schwarz highlights the prize of honor in Shang Yang in particular.

With Han Fei largely concerned with the disordered bureaucracy of his Hann state, proceeding from the collapse of the Jin state, Hansen's significantly earlier work "sociologically" discards the people from the equation, with Han Fei only "incidentally" concerned with the people. Hansen only attempts to differentiate Han Fei from the Mohists in a dislike of discourse and a modernly muddled reductionism of a devotion to the ruler's interest, or more broadly state power. Hansen recalling its narrative, Qinshihuang does at least regret his death in prison, in Sima Qian traditionally by Li Si's ambitious poisoning, as at least initially having been taken to be a devoted servant of the Hann state.

Pine's Stanford Encyclopedia modernly reiterates fa itself as a principle of transparency rather than oppression. Although considering it a digression of minor importance, he notes the Book of Lord Shang as allowing for the possibility that a need for "excessive reliance on coercion would end, and a milder, morality-driven political structure would evolve." His main point in digression is that in contrast to others, they don't expect a return to the Zhou order. Despite Hansen, in contrast to Shang Yang, Han Fei is not as regarded as believing that it will come to an end.

As Pines notes, the Book of Lord Shang has been regarded as profoundly anti-people. However, apart from its larger program of agriculture and war, it also advocates spreading penal knowledge in-order to prevent arbitrary punishment by ministers. Although critiquing his old broader program, Han Fei advocates Shang Yang's fa. Although Hansen glosses over Shang Yang's broader program, and was not fond of Han Fei, he did not regard Shang Yang's penal law, or Han Fei more broadly as anti-people, but as anti-ministerial.

In brief, ordinary people have an interest in the security against arbitrary punishment by officials. Officials should enforce punishment based on clear, public standards, without which punishment is morally deficient. Regulations allow people to avoid repercussions. As to the ruler's interest, fa objective standards prevent a building of power-bases based on arbitrary reward and punishment. If it is to protect him, fa cannot simply be what the ruler desires, nor, as based on measurement, is it by definition.

As related by Pines, Impartiality is taken the opposite of selfishness as standing for the common interest of the people, but normally refers to the interest of the king as different in practice. If Shang Yang's textual tradition regarded punishment as justice, and on the other hand the abolition of punishment a minor digression, by the time of the Qin empire they had regardless already reduced punishment, as noted by Pines. Based on the archaeology in the Cambridge history, the Qin empire reduced punishment primarily to banishment to the colonies. Deferred into fines, redemption was commonly allowed even up to the death penalty. Even when the fine could not be paid the punishment was not executed, because they could then work for the government. More generally, punishment could be redeemed by relinquishing an order or orders of aristocratic ranks.

Graham's realism

Although the Han dynasty would not appear to have received Shang Yang as a bureaucratic organizer, Tao Jian promotes both Shang Yang and Shen Buhai as pioneers in the bureaucratization of the state, in its highest positions, at "the beginning of a top-down political revolution", transforming subsequent Chinese political history. He recalls Creel as taking the civil service examination and systematic rating of officials as dating back to Shen Buhai, attributing Shen Buhai's success to being less draconian than Shang Yang.

The morality of Han Fei

Although Han Fei overwhelmingly tends towards a rule by impersonal standards, Eric Hutton regards him, in chapter 40, as seeming to admit that the Confucian benevolence and righteousness of Yao and Shun can have persuasive power even in his own time. However, in part as dependent on institutions, and although strictly speaking taken as Daoistic and applied to statecraft, insomuch as Han Fei can said to give regard to virtue, it has otherwise prior been argued that he considers wu-wei, or nonaction, its essence, as an otherwise predominant focus for him. More modernly, Tao Jiang posits Han Fei's values for the ruler as humility and self-constraint.

Regardless, virtue itself is insufficient. Limiting his intervention in affairs, Han Fei's ruler supposedly amasses power through fa (laws), which at least create order and stability.

Proceeding from the collapse of the Jin to the aristocrats and ministers, although establishing the administrative method Han Fei would inherit, Shen Buhai caused confusion with an issuing of laws without repealing the older ones. While Winston takes Han Fei as concerned with law order, Tao Jiang promotes Han Fei as concerned with justice, uncompromisingly opposes subversion of the law to the detriment of the people and state.

Huang-Lao

Schwarz considered Huang-Lao as beginning to Shen Dao. p248.FourLights (talk) 12:26, 9 December 2023 (UTC)

Han Fei p255.

Shang Yang

https://books.google.com/books?id=JNdT5hLPWuIC&pg=PA51#v=onepage&q&f=false

Three Elements notes

Receiving little literary attention in his time, a three elements view of the subject was early elaborated Liang Qichao. Misinterpreting Han Fei's critique of Shen Dao, chapter 40, he takes Shen Buhai and Shen Dao as earlier rival currents, with true Legalists rejecting the former and following Fa. Its early discussion may be seen as evidence against the idea that, unlike India, China lacked a tradition to fall back on in modern reform. However, while Liang Qichao is discussed on other fronts, as including his rule of man vs rule of law, no one holds his three elements view in the west, refuted by Chinese scholars long ago.

As opposed to Liang Qichao's antagonist three elements, Feng Youlan introduced a three elements view of the subject to the west with Han Fei as synthesizer. Feng Youlan presented shi as power or authority, shu as the method or art of conducting affairs and handling men (statecraft), and fa as law, regulation or pattern, connecting Fa with Gongsun Yang, Shu with Shen Buhai, and Shi with Shen Dao, with each supposed to have a group preceding Han Fei.

Chinese law expert Randall Peenrenboom takes a three elements view as having been considered simplistic before the turn of the century; Zhengyuan Fu's The Earliest Totalitarians (1996) includes it for the sake of the reader, with a chapter per theme. With the Oxford Handbooks at least intended to include an original argument, Sinologist Chris Fraiser would reiterate the view in the Oxford Handbook (2011), with reference to Creel, Graham and Hansen. Hansen's iconoclastic work reiterates the view, taking shi as primary.

With reference to Sinologist Goldin rather than Fraiser, Tao Jiang would go on to argue point, framing it as a traditional view preceeding Creel, while Pine's Stanford Encyclopedia would abandon the moniker of Legalism for the fa Tradition. Goldin takes a tendancy to extol Han Fei at the expense of other Chinese political philosophers as attributable to a view of his predecessors as authors of single political concepts; although their subjects are broader, the foregoing reiterate them as fa theorists in their own right.

Creel's branches of the Fajia

Although their topics are not as narrow as Han Fei presents, despite questioning and Han Fei's inclusion of the power over life and death under his own shu, there is no basis to suppose that Shen Buhai himself advocated Shang Yang's doctrine of reward and punishments. Creel notes six works as identifying Shen with bureaucracy; none identify him with penal law when spoken of by himself, and none pre-Han. Only when he is paired with Shang Yang is penal law attributed to them together in the Han dynasty. Historically, as with Shen himself, Shen's so-called" Shu "branch" largely ignored Shang Yang and penal practice, sometimes even opposing punishment.

In contrast to the limited body pertaining to Shen Buhai, censured under Han dynasty Confucian influence, Creel notes an "impressive body" of early works unanimously testifying Gongsun Yang's doctrines as described by Han Fei. That is, his doctrine being called fa, as including penal law, rewards and punishments, and lacking shu. Apart from general mutual surveillance and holding ministers to the public fa, he advised no method to control and supervise ministers. Most historical works posthumously emphasize his use of harsh penal law. No work indicates concern for organization or control of the bureaucracy

Recalled by Tao Jiang, Creel mostly leaves the Legalist interpretation of him alone, accepting it as ancient China's Legalist school or branch. However, despite portrayal, the Han dynasty's penal reception, and a higher 1928 translation of law, in reviewing the Shangjunshu, Creel also saw Gongsun as sometimes using Fa in an administrative sense. Shang Yang, Goldin says, engages statutes more from an administrative standpoint, as well as addressing many other administrative questions. Pines's 2017 translation of the Book of Lord Shang uses law where appropriate, but considers its fa to have impersonal administration as its second most common meaning. For Pines, Gongsun's fa primarily "channels social forces toward desirable social and political ends", in his case agriculture and war. Acknowledging the insufficiency of his management, Tao Jiang more modernly promotes him as a bureaucratic pioneer, with fa impartial regulations as law.

Objections to positional power

Han Fei not much discussing shi as 'potency' or awe, Graham took Han Fei's discussion of shi as concluding that political order depends neither on power (shi) nor moral worth, but on fa (as law, but including shu). Imposing orderly government throughout the empire irrespective of the ruler, the "strength of a throne depends on institutions made by man", with "settled and clearly defined laws rigorously enforced." Power is incapable of rule, shifting to an occupation of institutional positions.

Similarly, Tao Jiang takes the Fajia as distinguished from Confucianism in Han Feizi's recognition of a ruler’s political power as a product of political order, independent of his personal qualities. Taking them as problematizing an assumed connection between personal virtues and political authority, he holds their singular focus to be the institutionalization of political power.

Tao Jiang takes Han Fei as decidedly on the side of justice, even aiming at an essentially Mohist project of universal justice. As with Graham however, his mixed discussion, as relating with Han Fei's shi, takes the ruler's morals, and morals more generally, as politically irrelevant; after all, Han Fei says that people will "bow naturally to authority, and he who wields authority may easily command men to submit." In the same breath, with references to Pines, he posits Han Fei's morals for the ruler, aiming at a reduction of his relevancy, to be humility and self-constraint, with impartiality as highest virtue, rather than Confucian benevolence and righteousness.

Pines believes that Han Fei’s insistence on impartial “laws and methods” aim to subjugate and limit the ruler. As in the Analects, as quoted by Shen Buhai, the period expected mediocre rulers expected to delegate. On the other hand, it effectively expected a true or sage monarch to ensure perfect universal order and compliance. The Qin empire would appropriate the "monarchic discourse" of the period, which took an unrivaled, all-powerful, universal ruler as necessary for peace. Although victorious through military campaign, the Qin promoted that their unification had brought the Warring States period to an end. Pines takes it's discourse as represented in particular in Xun Kuang, as the purported teacher of Han Fei and Li Si.

Relying on fa as law, Han Fei, Tao Jiang says, uncompromisingly opposes the bending, manipulation, or subversion of state codes by powerful officials. As one of Han Feizi’s "most powerful condemnations" of gross injustice suffered by the people, to quote Han Fei, those who violate laws, commit treason, and carry out major acts of evil always work through high ministers. If laws and regulations are only designed to prevent evil among the people, then only they are subject to penalties. Hence, the "common people lose hope" with "no place to air their grievances", while the high ministers work to cloud the vision of the ruler.

With fa ideology relying on "perfectly designed political institutions that would accommodate mediocrities on the throne", Pines modernly takes chapter 40, Objections to positional power, as dedicated to the improvement of Shen Dao's ideas. Not concluding that the ruler's qualities are irrelevant, Pines takes the chapter as explaining that "the system should cater to the need of average or mediocre (zhong 中) rulers, neither moral paragons, nor monstrous tyrants." The system will "attain good results precisely because it does not expect of the ruler any extraordinary qualities."

Elsewhere recalled by Tao Jiang, for Han Fei, Winston says, order was not an abstract problem, but grew out of his experience during the Warring States period. Han Fei says "If the ruler is stupid and upholds no rule, ministers will act at random", enhancing their wealth and power to eventually breed chaos. Although Han Fei does not expect the ruler to posses extraordinary qualities, he "consistently addresses" the "enlightened, benevolent or sage ruler", who "investigates the conditions of order and chaos", promulgating clear laws and severe penalties "in order to rescue all living beings from chaos."

Power in early scholarship

A focus in the what Hansen terms "the ruler's point of view" as distinctive, in connection with power or shi depending, is prior represented in Wing-Tsit's 1963 encyclopedia, Roger T Ames (1983) Art of Rulership (1983), and later, Zhengyuan Fu's legal positivist popular literature, The Earliest Totalitarians (1996). Wing-tsit Chan (1963) described Legalism as the most radical of the schools, primarily interested in power, subjugation, uniformity, and force, recognizing no authority apart from the ruler. Han Fei calls the method he recommends to sovereigns the Way of the Ruler, and echoing Wing-tsit, Professor Roger T. Ames (1983) took Legalist political philosophy as "government of the ruler, by the ruler, for the ruler", involving control in the interests of "absolute power, stability, personal safety, military strength, wealth and luxury", although keeping in mind the strife giving rise to its "totalitarianism."

Hansen characterizes Han Feizi as the first Zi (master) from the ruling nobility. Eschewing ethics in favour of strategy, it is taken for granted that the goal of the ruler was conquest and unification of all under heaven. Although focused on Fa, and relegated as secondary by Han Fei as Shen Dao's doctrine of power or situationist authority (shi), Hansen takes Shen Buhai, Shang Yang, and Han Fei as all motivated "almost totally from the ruler's point of view". Hansen considered this as constituting a key difference between the Han Feizi and Western law, Confucianism, or the more universal social standpoint of Mohism, despite having an otherwise Mohist conceptual framework.

Fraiser would consider a primary difference between Mohist and Legalist Fa to be its arbitrariness in suiting the purposes of the ruler.

Soon-Ja Yang (2010) vacilitates against the idea that Han Feizi and the other ancient Chinese Legalists support absolutism, autocracy, despotism or tyranny, or that they sacrifice the people's interests for that of the ruler. He argues that Han Feizi even advocates ren 仁 (humanity), yi 義 (rightness), and li (propriety), otherwise modeling himself after nature, with Shu technique preventing a ruler from abusing their power and to put laws into practice with justice.

Chinese scholar Peng He (2014) argued that, although stressing the necessity of strengthening the ruler's force, they still emphasized the ruler's legitimacy, differing it therefore from western legal theories based on coercion. Although figures like Cao Cao and Sun Quan had force requiring obedience, the Romance of the Three Kingdoms prefers the blood-related Liu Bei whose laws are depicted as producing just behavior. Ruler-centric monarchical legitimation itself includes values beyond that of a pure consequentialism. Western monarchical legitimacy, Peng He recalls, similarly precedes western legalism, with Chinese Legalism not accomplishing its transformation as an ancient philosophy. But its laws, if taken as a bad, are still intended to produce a good, stressing rather that "ethical norms and morality should remain in the realm of family and private fields."

Fa notes

Creel did not regard Fa as necessarily shifting towards law, but as a spectrum of gradation. Fa as method or even technique would appear older than fa as law. Although penal law in a manner of speaking would already exist, the Fa of Gongsun Yang, characterized by Tao Jiang in impartial regulations as law, would represent a radical reform.

Fa's application to law following the Qin unification is procedural, as in the imposition of standards. Primarily addressing such administrative items as weights and measures, it only derivatively includes penal law as an adjunct to li ritual, mechanically geared to named wrongs. Abstract model patterns from the Qin empire guide more penal legal procedure based on real-life situations, although they do not necessarily explain their designations or the results of their cases.

Rarely used in earlier texts, the Qin would name the body of statutes with its major articles as lu rather than fa, although its term is also indicative of administration and measurement. The laws themselves indicate an interest in quantitative technique. More common in legal texts than fa, xing as punishment would come to encompass prohibitionist texts as penal law. Along with other artifacts, and despite the antagonism of Shang Yang and Han Fei, the codes often uphold Confucian values.

Xing-Ming

Xing-Ming (hsing-ming) referred to personnel control and examination in the Warring States period and Han dynasty. Although it's examination purposes would appear older and primary, the Ziyuan (book) considered secretaries who handled criminal records as having come to be called Xing-Ming in former times prior to it's writing. Liu Xiang considered Shen Buhai it's founder. Also utilized in the Han Feizi, Emperor Wen of Han was considered a proponent of it. In contrast to "Legalist" figures like Shang Yang, Wen was known in the Hanshu for making capital punishment a rare occurrence.

Noting that it could not refer to punishment in a number of context, sinologist Herrlee G. Creel argued that it meant something like Title and official performance. Xing-Ming may be compared to to ming-shih, or name and reality.

Mohism

several prominent ideas in the Fajia “Legalist” thought that served as the state ideology of the Qin find clear precedents in Mozi’s philosophy. The later Mohists continued Mozi’s early interests and developed sophisticated systems of logical analysis, mathematics, optics, physics, defensive warfare technology and strategy, and a formal ethic based upon calculations of benefit and harm. All of these philosophical concerns can be found in the early strata of the Mozi

Shang Yang

Gongsun's reforms include detailed legal codes, universal military service, the award of state service titles, a capitation tax

The_Cambridge_History_of_Ancient_China. 615. tax.

Pines evolutionary

Sinologist Yuri Pines regards an evolutionary view of history, with economic conditions altering moral values, as distinguishing Fa thinkers from other models of state formation. Everything is implied to be changeable via socioeconomic conditions, altering human behaviour, and requiring institutional adaptation in turn. The majority still believed in the inevitability of innovation and reform, but not necessarily "radical overhaul".

questioning the relevance of the past to the present, they dispensed with traditional rule

the statesmen were "more resolute in their willingness to dispense with traditional modes of rule," , and attacking "supporters of learning from the past" as evolutionarily obsolete.

While a majority tried to fit within the the “changing with the times” paradigm, what Yuri Pines terms Fa thinkers dispensed with tradition, querying the relevance of the past to the present.

The Ruler's Private Arcanum

Acknowledging Creel's work to the effect that Shen Buhai does not practice law, as a proponent of Legalist interpretation Chinese law expert Randall Peerenboom (1993) reiterated that Shen repeatedly warns against the display of discretionary powers. While this is generally advised, Shen regarded the ministers as the ruler's true enemies, even if he was less stringent than Han Fei. Although suggesting the ruler need not, with proper technique, always go to extremes, Han Fei's expectation is that every actor is driven by self interest.

As relevant to our discussion, Hansen 1992 takes Shu (method) as relying on Fa (objective standards), providing rewards for "public, measurable accomplishments", adadpting a "Confucian-Mohist" theory of advancing the worthy. Shu "could make no sense unless there are objective standards of conduct independent even of the ruler's desires." Han Fei introduces his own rewards and punishments as a component of Shu rather than Fa. Hansen presents Wu-wei as component of Shu techniques and vice-versa. Notably, along with Creel (1970), despite a seemingly noninflationary use of terminologies, neither document presents Shu as a variety of Fa; if the theory exists, it must be represented elsewhere.

While Shang Yang's public Fa intended to enable the people to hold ministers to it, Han Fei famously criticizes him as being too focused on it. Han Fei pays primary attention to Shu, or managerial technique, saying “the sage orders the officials, not the people."

Shu is nonsensical without Fa as generating measurement standards,

Shu is a private managerial variety of the mechanical Fa, representing skill in the control of ministers. It's emphasis on secrecy enhances Shi, or situational authority. The Han Feizu characterizes Shu as including the bestowal of office on the basis of concrete responsibilities, demanding performance on the basis of titles, wielding the levers of life and death, and examining the abilities of the ministers.

The first half of it's techniques of rule represent a variety of what Pines term bureaucratic devices aimed at the monitoring of officials performance. Pines elaborates Shu's secondary aspect, being the levers of life and death, and examination into abilities, as aimed at safeguarding the ruler’s power against the ministers.

representing a political struggle in which the fairness and transparency of Fa are not applicable, the secrecy and trickery of Shu have been taken as to some extent in conflict with the public Fa, but it must be remembered that the tradition represents the interests of ruler and not liberal democracy (Hansen). Regardless, Pines takes it's anti-ministerialism as containing some of it's most questionable suggestions, as included in particular in the Inner Congeries of sayings.

Shu does not include tactics, which are a separate category.

As a derivative of Fa, the essence of Shu is mechanical, and Han Fei's is even more mechanical than Shen's

As an explicit function of it's Fa, wu wei, or the qualified non-activity of the ruler, is included under Shu.

In the contrast to the more mechanical public Fa, the ruler employing Shu must still engage in a careful judgement of interests, which he ought to keep secret.

Otherwise safegaurding the ruler, Shu's object includes the enablement of examination into the ministers proposals, abilities and results, so as to co-opt them.

Although in line with wu wei, such advice as one might expect to be included in it, such as showing nothing, are still included under tactics. The Inner Congeries includes alternative means to it's accomplishment, such as to issue confusing edicts or to say the opposite of what one means.

Early post-Creel Legalism

Roger T. Ames 1983 The Art of Rulership includes a number of different topics on the subject. It is quoted in part in the anti-ministerialism section for it's statement, "self-regulating systems as the most effective means of achieving the purposes of the ruler." Placing Legalism first and managerial details second, the priorities of it's just generalized Legalist political philosophy just happens to be in line with Needhams 1956 Legal positivism, or Gongsun Yang and the Book of Lord Shang, rather than that of the Han Feizi.

The work regards the first of self-regulating systems as "the codification of an objective and universally applicable body of laws". The codification of public standards is applicable for Shang Yang as well as a number of early figures. The work regards bureaucratic organization as "another important system", including Xing-Ming, representing the managerial system of the Han Feizi, and Shen Buhai through him.

Although not representing the priorities of the Han Feizi as described by Creel, this order of operations accurately represents the Legalist political philosophy of the 1983 work, The Art of Rulership, as well as Qin history, for such figures as Shang Yang. Huang Kejian (2016) describes such figures as Gongsun Yang as Early Legalists who did not yet realize the limited potential of Fa for law, and the significance of Shu, contributing to the downfall of some of its members as including Gongsun himself. As referenced by The Cambridge History of China 1939:

The execution of Shang Yang was a major turning point in Qin history. His reforms had made Qin a more effective fighting force, but they had also made the state more vulnerable to internal rebellion. The chaos that followed his death allowed the other Warring States to take advantage of the situation, and Qin was temporarily eclipsed.

notes =

• Per Creel's notes, Hu Shih represents the first rejection of legalism as a school
• Creel's notes present Derk Bode (1938) as the first English-language Legalist
• Creel's notes present Joseph Needham as the second Legalist
• Critical early scholarship: Feng Youlan (1948), Creel (1970/1947),
• Early Mohist interpretation: Benjamin Schwarz (1985)
• Legalist essentialism: Graham (1989)
• Mohist essentialism: Hansen (1992/1994)
• Critical legal positivism: Peerenboom (1993),
• Uncritical legal positivism: Zhengyuan Fu (1996)
• Rule of law comparative: Kenneth Winston (2005), rebuting Peerenboom
• Winston rebutal: Han Fei, Welfare, De (2011)
• Mohist acceptance: Chris Fraiser Oxford 2011
• Anti-consequentialism: Peng He (2014)
• Critical Mohist interpretation, anti-rule of law: Huang Kejian (2016)
• Mohist, legalist precedent: Tao Jiang (2021)
• Critical late scholarship: Goldin (2011), Yuri Pines (2023)

• Counterindictives: Oxford (2011),
• Semicounterindictives Fengyoulan, (adventures in Chinese realism 2022)

Although more scholarly, the discussion of rule of law versus rule by law can preface the subject of "Chinese Legalism." These discussions commonly reference legal positivist philosophers John Austin (1790-1859) and Jeremy Bentham (1748-1832).

Chinese scholar Peng He views Chinese Legalism as consequentalist. It puts emphasis on the "legitimate status of the ruler" over his force. This can be compared with western law: the sovereignty of the ruler came before the growth of western legalism, moving from a relation of status to contract. Chinese Legalism as an ancient philosophy "did not go through this transformation." It aims at obedience to "law" and the pusrsuit of order and security.

But in contrast to the rights and duties of the Confucian family and society, it distinguishes rules and the controlling function of "law". It doesn't necessarily reject ethics, but it views law as more of a necessarily evil producing a good. Peng He argues for the diversity of norms among Confucianism, "Legalism" and Daoism: Contemporary Chinese scholar Shuchen Wu differentiated between Li (rules of propriety) and Fa as law even Pre-Qin. Legalism can be compared with Daoism and Mohism in believing that Dao should be applied to everyone. But rules, although they should be harmonious with Dao, are different norms.

Sinologist Chad Hansen (1992) took the opposite view: the difference between the Fajia and the Confucians is "not as deep as the Western legal positivists contrast between law and morality." The Fajia were not a distinct school of thought, and were not in opposition until the Warring States period. Later syncretic texts like the Guanzi still do not appear to make great distinction between Fa and other social codes, like that of the Confucians, and the Fajia do not seem to think they are using Fa differently than anyone else. Fa is not distinct as a social code, and Fa is not necessarily law, but remains the administrative function inherited from the Mohists.

The Internal Morality of Chinese Legalism Peng He. https://www.google.com/books/edition/Chinese_Lawmaking_From_Non_communicative/ p.85

Decline of Legal positivist interpretation

Following Sinologist Herrlee G. Creel's elaboration of Fa as administrative method for Shen Buhai, Benjamin I. Schwartz (1985), with reference to the Mohists, noted the inaccuracy of law in many such cases, translating it as model, standard, copy, or imitation, with reference to the carpenter's square, compass and builder's plumb-line. The behavior of Mozi's ruler acts as Fa for the noble's and officials as in Confucianism, moving towards "prescriptive method or techne", describing craft and political technique. Schwarz regards Fa as an alternate means to social control from Li.

Kenneth Winston 2005 (rule of law)

Contrary Peerenboom, Kenneth Winston (2005) argues that Han Fei's Fa or "law" still connects with morality, and can still be called rule of law legislatively rather than judicially. Han Fei's essays, although Realist, are practical rather than academic, and advocate a robust principled instrumentalism aimed at achieving a desirable political order. Han Fei is committed to making law as determinate and strictly applied as possible. His law is not merely the command of the ruler, is impersonal, uniform, and does not distinguish between persons.

The ruler might be anyone, but Han Fei addresses the enlightened, benevolent, or sage ruler who investigates chaos and promulgates clear laws to rescue all living beings. The enlightened ruler eliminates misfortune, prohibits exploitations and oppressions, and cares for the old, the infirm, the orphan, father and son, replacing private interests by men of integrity and public spirit. In contrast to John Austin, Han Fei is confident in "the abilities of ordinary people to be intelligent participants in legal order", and is "as close as any ancient Chinese legal theorist could possibly get to formulating the rule of law ideal." Han Fei says: the most enlightened method of governing a state is to trust measures and not men.

Winston is quoted in Tao Jiang's 2021 Origins of Moral-Political Philosophy in Early China.

Academic decline

Regarding it as "neither suggesting separate philosophical doctrines nor constituting separate philosophical movements", the first edition of the Routledge History of Chinese Philosophy (2009) includes Legalism in the Volume editor’s appendix with a mention of Han Fei. It presents the standards/laws of the Fajia or "Legalists" as primarily concerned with weights, measures, width of chariots etc, and only derivatively as including penal codes "as explicit public formulations of punishments mechanically geared to named wrongs." It lists Graham and Hansen as the most recent of it's bibliography. Peter Moody (2011) makes a Daoist comparative in Journal of Chinese Philosophy.

The Oxford Handbook of World Philosophy 2011 does not regard the Legalists as having been an actual movement or school at all, or part of Warring States discourse, with the Book of Lord Shang compiled a hundred years after his death. Along with the Daoists, the Fajia were invented as a category by Han historians. As previously stated by Creel, it grouped together disparate statesmen. The thinkers derive Fa from the Mohists, as representing models or standards, of which laws may be taken as one kind. In contrast to the Mohists, their Fa (Standards) were arbitrary in the sense of suiting the purposes of the ruler, adopting the meritocratic idea of the Mohists without consideration of moral worth.

Mohist interpretive

Huang Kejian 2016 (Amoralist)

Chinese scholar Huang Kejian (2016) discusses the differences between Fa and Roman law in the translated work, From Destiny to Dao (2016), in a chapter on The Different Implications of Roman Law and the Legalist Fa. While the "Legalists" might speak of Sages who governed their states, they dispose of the Confucian Sage, leaving a sage who only practices statecraft. Although its practice might be effective in a feudal state, it is assumed that good management only comes from strategies able to manage a majority, and the Fajia proper ignore the teaching of ethical conduct and other methods as impractical.

Essentially, Fa asks the results and not the motivation, de-emphasizing concepts like virtue. "Completely ignoring issues pertaining to an individual's existence", the scope of Fa will be limited; its emphasis on measurement to the exclusion of other considerations will reduce the potential development of law, and its "legal" usage does not tend to move beyond penal codes toward a system of civic regulation. This will tend to orient the usage of Fa towards Shu, or tact and method in managing a bureaucracy. Huang concludes that Fa "has no recognizable connection to the modern concept of law." An accessory to wealth and strength, it does not inspire or concern itself with a conception of rights, nor does "rectifying chaos" or correcting weights promise justice, a value Huang considers "intricately tied" to Roman law.

Feng Youlan (1948) regarded the "Legalists" as having developed foolproof methods for average rulers to govern large areas well, leaving them a high concentration of power. But he considered it therefore incorrect to associate them with jurisprudence. They taught theories and methods of organization and leadership, useful, he believed, primarily to totalitarian leaders and organizers. By contrast, Creel's interpretation of Shen Buhai is modernist, for which he was also critiqued.

Part of Sinologist Herrlee G. Creel's work (1970/1974) may be regarded as the differentiation of the Fajia, Fa and Shen Buhai from the Legalist interpretation (Tao Jiang 2021). In Creel's opinion, given the likely predominant influence of the managerial Shen Buhai branch, while one might say that the members of the Fajia played a great role in the basic establishment of traditional Chinese government, one cannot say that Legalists did, even if the reforms of the more "Legalistic" Shang Yang contributed to its contemporary land reform and military unification. Moreover, although their branches may have been utilized together by the Qin, Han Fei himself distinguished differences among the statesmen in syncretising them, and those following after them historically often had different interests, with the Shen Buhai branch often opposing penal punishment as a method of management. Shang Yang often used Fa administratively.

Sinologist Chad Hansen's (1994) Fa (Standards: Laws) and Meaning Changes in Chinese Philosophy locates the Legalist interpretation in translation. Chinese characters are held to change meaning more often than words in other languages. The political thought of the Fajia are said to resemble something like Legal positivism. Those who know Chinese, armed with a dictionary, therefore know that when a Legalist uses Fa, he means law, thus completing a circular argument. When any of the others schools use Fa, it refers to measurement standards and exemplars. Han Fei says: "If the ruler has regulations based on Fa (measurement standards) and criteria and apply these to the mass of ministers, then the he cannot be dupped by cunning and fraud." Making "dangerous" use of interpretation utilizing Fa's basic historical meaning instead of a dictionary, Hansen suggests that laws cannot generally prevent deception. The meaning shared with the other schools (and Shen Buhai) can, comparing measurements against standards.

Chinese scholar Huang Kejian (2016) discusses the differences between Fa and Roman law in the translated work, From Destiny to Dao (2016), in a chapter on The Different Implications of Roman Law and the Legalist Fa.While the "Legalists" might speak of Sages who governed their states, they dispose of the Confucian Sage, leaving a sage who only practices statecraft. Although its practice might be effective in a feudal state, it is assumed that good management only comes from strategies able to manage a majority, and the Fajia proper ignore the teaching of ethical conduct and other methods as impractical. Essentially, Fa asks the results and not the motivation, de-emphasizing concepts like virtue.

"Completely ignoring issues pertaining to an individual's existence", the scope of Fa will be limited; its emphasis on measurement to the exclusion of other considerations will reduce the potential development of law, and its "legal" usage does not tend to move beyond penal codes toward a system of civic regulation. This will tend to orient the usage of Fa towards Shu, or tact and method in managing a bureaucracy. Huang concludes that Fa "has no recognizable connection to the modern concept of law." An accessory to wealth and strength, it does not inspire or concern itself with a conception of rights, nor does "rectifying chaos" or correcting weights promise justice, a value Huang considers "intricately tied" to Roman law.

Legalist counterargument

Chinese law expert Randall Peerenboom (1993) compares Han Fei to John Austin with the accepted standards of legal positivism, and concludes that he is a legal positivist. Establishing the ruler as the ultimate authority over the law, he also "shares the belief that morality and the law need not coincide." Han Fei's government is "for the average person by the average ruler", and he is "explicit" about law, it's central role, publicity, and antedating claims: "Law is codified in books, established in government offices and promulgated among the hundred surnames... Law (Fa) includes mandates and ordinances promulgated in the official bureaus, penalties certain in the minds of the people, rewards due to careful observers of laws, and punishments inflicted on offenders of orders. It is what the subjects and ministers take as their model... The early kings took dao as the constant standard and law (Fa) as the basis of government."

Contrary Peerenboom, Kenneth Winston (2005) argues that Han Fei's law still connects morality and law, and can still be called rule of law legislatively rather than judicially. Han Fei's essays, although Realist, are practical rather than academic, and advocate a robust principled instrumentalism aimed at achieving a desirable political order. Han Fei is committed to making law as determinate and strictly applied as possible. His law is not merely the command of the ruler, is impersonal, uniform, and does not distinguish between persons.

The ruler might be anyone, but Han Fei addresses the enlightened, benevolent, or sage ruler who investigates chaos and promulgates clear laws to rescue all living beings. The enlightened ruler eliminates misfortune, prohibits exploitations and oppressions, and cares for the old, the infirm, the orphan, father and son, replacing private interests by men of integrity and public spirit. In contrast to John Austin, Han Fei is confident in "the abilities of ordinary people to be intelligent participants in legal order", and is "as close as any ancient Chinese legal theorist could possibly get to formulating the rule of law ideal." Han Fei says: the most enlightened method of governing a state is to trust measures and not men.

Winston is referenced and quoted in Tao Jiang's 2021 Origins of Moral-Political Philosophy in Early China.

References

• R. P. Peerenboom 1993 p. 140,241. Law and Morality in Ancient China. https://books.google.com/books?id=ctWt6bvFaNAC&pg=PA140
• Kenneth Winston p. 315. Singapore Journal of Legal Studies [2005] 313–347. The Internal Morality of Chinese Legalism. http://law.nus.edu.sg/sjls/articles/SJLS-2005-313.pdf

P335. Han Fei quote.

• Lim Xiao Wei, Grace 2005 p. 8. Law and Morality in the Han Fei Zi.
• Chinese Legalism Peng He 2014. p. 85-86. Chinese Lawmaking: From Non-communicative to Communicative. https://books.google.com/books?id=MXDABAAAQBAJ&pg=PA85
• Kenneth Winston summary complete

Small bronze plaque containing an edict from the second emperor of the Qin dynasty. 209 BCE.

This section has never been published, it is only a reflection at present on older scholarship. Although Hansen may place too much emphasis on anti-ministerialism, I regard it as correct in the sense that, even if Shang Yang is more focused on institution than anti-ministerialism, Xing-Ming anti-ministerialism as an administrative focus still precedes Han law.

As opposed to Graham's or state order of reward and punishment, or the institutionalism of Graham, Tao Jiang or Pines more broadly, Hansen emphasized anti-ministerialism as in his argument against Legalist interpretation, taking Shang Yang's anti-bureaucracy as a precursor to that of Han Fei. Hansen characterizes them together with their predecessor Mozi as following a philosophical tradition of "objective, public, accessible standards (Fa)" as opposed to that represented by Xun Kuang's schooled magistrates, a contrast reiterated by the Encyclopedia of Chinese Philosophy (2003/2013) between Shang Yang and Xunzi.

Shang Yang's punishment contributes, Hansen says, to a tendency to see his Fa standards as essentially penal. But to quote Gongsun Yang, "Government officials and people who are desirous of knowing what the fa stipulates shall all address their inquiries to these fa officers, and they shall in all such cases clearly tell them about the fa and mandates about which they wish to inquire." In this sense, Gongsun's Fa is not anti-people, but attack's ministerial privilege and power over the people by spreading knowledge of the Fa, preventing arbitrary ministerial reward and punishment. This also prevents them from acquiring a powerbase, as one of Han Fei's focuses. In contrast to Graham however, Hansen goes further in saying that Han Fei regards both as necessary only from the perspective of the ruler.

A shift from anti-people to anti-ministerialism may on the surface look good for Shang Yang. As later elaborated by Kenneth Winston however, a focus in the ruler's interest, or instrumentalism, attacks rule of law and the place of law as an independent entity, simply taking it as an instrument in his hands. Primarily a counter to Peerebnoom (1993), Peerenboom's Legal positivism held the same position with regards Fa as law. While overstating Fa as law, Graham moves towards an institutional view.

Attacking Fa as law, with backing in the Guanzi Hansen carries carries over Legal positivism's same focus in the ruler, taking the Fajia's institutions as simply anti-ministerial where they are noted. Winston takes a legal positivist view as more representative of the three dynasties of China's bronze age, namely the Xia, Shang and Zhou. Despite Hansen's presentation, amongst other examples he himself notes that Han Fei takes even private Shu management as nonsensical without Fa objective standards independent of the ruler's desires.

While Hansen may have taken Fa as represented in Gongsun Yang as primarily anti-ministerial, Pines modernly still does not. Pines still takes Gongsun's Fa primarily as institutional, channelling social forces toward desirable social and political ends, namely Gongsun Yang's entire early sociopolitical structure of agriculture and war. In fact, as quoted in Creel's branches, Han Fei "famously criticizes Shang Yang" for being too focused on Fa in this sense, paying insufficient attention to governing the bureaucracy. Although considering their anti-ministerialism profound, the clear parallels, Pines says, between the Shangjunshu and the Han Feizi amongst other works is an "insistence on the advantage of impersonal administrative methods (fa) over individual decision making by the ruler and his aides."

As with Graham, Hansen takes shih, being power or situation authority, as based in institution. Han Fei sometimes takes shih as an application of wu wei or reduced activity, being a component of shu managerial method. Wu-wei techniques maintain a distance and mystery between ruler and minister, enhancing situational authority. Unlike Confucius, his wu wei depends on institutions rather than moral character. Pines takes the ruler's interest, and shu's anti-ministerialism, as conflicting with a complete institutionalization, which "Song Hongbing suggests reflects Han Fei’s realization of the dirty nature of political struggles, in which the fair and transparent norms of fa are not applicable."

Hansen presents Shu method as controlling ministers in a merit-based, objective standards adaptation of the "Confucian-Mohist theory of advancing the worthy", based on strict performance criteria. Despite comparing the Fajia with the Confucians more broadly, as point taken up more by later scholarship, Hansen regards the Fajia's control as only "preventing the usual drain" of power to the ministers, versus a positive use by the Confucians, who "carry out all the functions." The ruler "must never accept mere recommendation or fame" because it enables cliques of mutual interest. Hence, the ruler's "calculation of merit" only prevents biases that "undercut the ruling purpose".

Pines takes anti-ministerialism as a secondary component of shu. Pines takes it's first component as a "variety of bureaucratic devices aimed at monitoring the officials’ performance", being Hansen's self-same Shu. To quote Han Fei: “Technique (shu) is bestowing office on the basis of concrete responsibilities, demanding performance on the basis of titles, wielding the levers of life and death, and examining the abilities of the ministers." Hence, aimed at the same-self earlier Confucian performance of ministerial duties. Pines notes that Shu is framed from the context of the ruler’s struggle against ministerial treachery, cabals and cliques, but still does not present anti-ministerialism as it's first function.

Pines recalling Goldin, Goldin compares the notion of 'performance and titles' to a modern call for bids. A minister makes a proposal based on his official duties, and his performance is matched against his proposal and rewarded or punished for the results. Although monitoring performance, quoting Goldin, this self-same function is firstly productive. Goldin says: "The best way to select a deputy" is not to seek a minister one judges to be most appropriate, which would enable scheming ministers. Rather, the "best method is simply to wait until one enterprising minister offers to do the task." Han Fei advised rulers to leave the very definition of the task to the competing ministers, not addressing any objection that this effectively allows them set the agenda - the minister's interest view of Graham.