For more than 200 years, the Chinese people have experienced war as their daily reality, and a legalistic approach to trying to control people`s worst impulses – controlling people through the threat of severe punishment for injustice – would have been the best way to deal with the chaos. Shang Yang`s legalism dealt with everyday situations, but also extended to how to behave in wartime, and he is credited with the tactic of total war, which allowed the Qin state to defeat other warring states in order to control China. It is an astonishing saying: the minister is inherently deceitful and murderous, and his failure to eliminate the sovereign is only a sign of insufficient preparation, not unwillingness to do so. The threat that ministers pose to the monarch is inherent in their position and can only be defused through the correct application of methods and techniques of government. Penalties and punishments can deter people from wrongdoing, but to encourage them “whatever the leader wants,” positive incentives – “ranks and emoluments” – are no less important. The ruler`s main goal, as Shang Yang keeps repeating, is to turn his subjects into industrious peasants and brave soldiers. This can only be achieved if engagement in these “bitter and dangerous” professions is the only way to ensure material wealth and fame. This understanding is in the background of Shang Yang`s most famous reform: the replacement of the traditional hereditary aristocratic order of Qin with the new system of “rank of merit.” Two other legalistic texts mentioned in the Han Imperial Catalogue have not been preserved intact, but lengthy quotations of them in the Imperial Encyclopedia have allowed for a partial reconstruction of their contents. Shēnzi申子 is attributed to Shen Buhai, who served as Chancellor of the State of Hán 韓 in the middle of the fourth century BC. J.-C. and is credited with a significant administrative improvement there.
Of the original six chapters, fewer than three dozen fragments have remained intact (Creel, 1974). Another text, Shènzi 慎子, is attributed to Shen Dao 慎到 (circa 300 BC), of whom very little is known (it is even possible that the figure of Shen Dao is an amalgam of several personalities; see Xu Fuhong 2013:2-8). Of the original 42 chapters, seven have survived (albeit in incomplete form) in a seventh-century encyclopedia; In total, more than 120 surviving fragments of the text are considered authentic (Thompson 1979; cf. Xu Fuhong 2013). To avoid confusion between Shēnzi and Shènzi, they are hereinafter referred to as the works of Shen Buhai and Shen Dao respectively. Shen stressed the importance of finding the right person to fill a position (xingming 刑名) and evaluated officials based on their abilities, performance, and seniority. He believed that leaders maximized power by wielding it as little as possible. He also encouraged leaders to scale back their activities and leave the details of administration to relevant ministers.
Well, the reason why a ruler builds high interior walls and outer walls, looking carefully at the bars of doors and doors, is to prepare [against] the coming of invaders and bandits. But whoever assassinates the ruler and takes his state does not necessarily climb difficult walls and slams doors and doors with bars. [He can be one of the ministers who] by restricting what the ruler sees and restricts what the ruler hears, takes his government and monopolizes his orders, owns his people and takes his state. (Creel 1974:344, modified translation) Today, [the leader] relies on many civil servants and many employees; To monitor them, he set up assistants and superiors. Assistants are installed and supervisors are set up to prohibit [staff] from making [personal] gains; But assistants and superiors also aspire to profit, so how can they forbid each other? (Shang jun shu 24:133; Book Lord Shang 24.2) Performance and title refer to statements and tasks. The Minister presents his statement; The sovereign assigns tasks to him according to his declaration and evaluates his merits exclusively according to the task. If merit coincides with the task and the task coincides with the declaration, [the Minister] is rewarded; If the merit does not match the task and the task does not match the statement, he will be punished. (Han Feizi 7:40–41) Legal scholars have placed particular emphasis on pragmatism regarding primacy and custom as the foundation of law. Laws should be objective, impersonal and impartial standards of human behaviour. Their aim was to support the state, the king and his army by balancing individual behavior with the public interest. Legalists believed that if the penalties were severe and the law applied equally to all, neither the powerful nor the weak could escape the control of the state. The state could reshape human behavior through the application of normative norms and criminal law (fa).
The effectiveness of laws depended on their enactment from a position of impersonal and institutionalized domination and the tacit support of the people. The Yellow Emperor said, “A hundred battles a day are fought between the superior and his subordinates.” Subordinates hide their private [interests] and try to test their superior; The supervisor applies standards and measures to restrict subordinates. Therefore, when norms and standards are established, they are the treasure of the leader; When cliques and cabals are formed, they are the minister`s treasure. If the minister does not assassinate his leader, it is because the cliques and the cabal are not formed. (Han Feizi 8:51) Legalism holds that people are essentially evil because they are selfish by nature. No one, unless forced, willingly sacrifices himself for another. According to the rules of legalism, this person will most likely be killed if it is in the best interest to kill another person. To prevent such deaths, a ruler had to create a set of laws that would direct people`s natural inclination toward self-interest toward the good of the state. Accordingly, in the land of an enlightened ruler, there are no texts written in books and on bamboo strips, but the law is doctrine; There is no “speech” of the former kings, but the officials are the teachers; There is no private handling of swords, but beheading [enemies] is bravery.
(Han Feizi 49:452) Unlike other famous philosophers of the time, Han Fei (韓非) was a member of the ruling Han family; In this context, his works have been interpreted by some scholars as addressing his cousin, the King of Han. Han Fei`s entire recorded work is collected in Han Feizi`s fifty-five chapters. Han Fei`s philosophy borrows from Shang Yang`s emphasis on laws, Shen Buhai`s emphasis on Shen Dao`s techniques and ideas on authority and legitimacy. The other main source of his political theories was Lao Zi`s Taoist work, the Tao Te Ching, which he interpreted as a political text and commented on (chapters 20 and 21 of his book Han Feizi). He saw the Tao as a law of nature that everyone and everything had to follow. At the same time, he believed that an ideal ruler made laws, as an inevitable force of nature, that people could not resist. Shen Dao concludes that the ministers may be guided by moral commitment; On the contrary, these exceptional people should not be employed at all. This sentiment is echoed in Han Feizi, a text that expresses with extreme clarity his conviction that each member of the elite – like each member of society – pursues his or her own interests (cf.
Goldin 2005:58-65; 2013). There are officials of moral integrity, but they are extraordinary individuals: “One cannot even find a dozen men of integrity and trustworthiness of the service (shi士), while the officials within the borders number in the hundreds. If only men of integrity and trustworthiness can be employed in the ministry, then there will not be enough people to fill the positions” (Han Feizi 49:451). This awareness is the source of the thinker`s great concern about the continuous and intractable power struggle between the ruler and members of his entourage (see below), and is also a source of Han Fei`s (and other legalists`) insistence on the priority of impersonal norms and regulations in dealing with relations between leaders and ministers. A sound administrative system should not be based on the trust and respect of ministers; On the contrary, they should be strictly controlled. A political system that presupposes human egoism is the only viable political system. Promotion must be separated once and for all from the personal judgments of the leader (or his ministers). It is enough to look at the performance of an incumbent at the lower level of the bureaucracy and promote him to higher positions with more and more responsibilities. This objective process of promotion for measurable and objective merit became one of the hallmarks of the Chinese administrative system throughout the imperial period and beyond.
Thinkers of different ideological tendencies shared the sober realization that a sovereign can be mediocrity; But for them, this problem was easy to solve. To the extent that the sovereign was wise enough to entrust day-to-day affairs to a meritorious assistant, he could continue to enjoy absolute prestige, while practical matters were decided by worthy ministers (see, for example, Xunzi 11:223–224; Hutton, 2014: 112–113).