New situations brought with them new problems. Such were the conditions faced by all the rulers of the feudal states of the time, and it was the com-mon endeavor of all the schools of thought since Confucius to solve these problems. Most of their proposed solutions, however, were not realistic e-nough to be practical. What the rulers needed were not idealistic programs for doing good to their people, but realistic methods for dealing with the new situations faced by their government.
There were certain men who had a keen understanding of real and practi-cal polities. The rulers of the time used to seek the advice of these men, and if their suggestions proved effective, they often became trusted advisers of the rulers, and in some cases became Prime Ministers. Such advisers were known as fang shu chih shih or men of method.
They were so (tailed because they developed methods for governing large areas; methods which left a high concentration of power in the person of the ruler, and which they boasted were foolproof. According to them, it was quite unnecessary that a ruler be a sage or superman. By faithfully applying their methods, a person of even merely average intelligence could govern, and govern well. There were also some "men of melhod ' who went further and supplied a rational justification or theoretical expression for their techniques. It was this that constituted the thought of the Legalist school.
Thus it is wrong to associate ihe thought of the Legalist school with ju-risprudence. In modem terms, what this school taught was the theory and melhod of organization and leadership. If one wants to organize people and be their leader, one will find that the Legalist theory and practice are still instructive and useful, but only if one is willing to follow totalitarian lines.
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Han Fei Tzu, the Synthesizer of the Legalist School
In this chapter, 1 take Han Fei Tzu as the culminating representative of the Legalist school. He was a descendant of the royal house of the state of Han, in present Western Honan province. The Shih Chi or Historical Records says of him: "Together with Li Ssu, he studied under Hsiln Tzu. Li Ssu considered himself not equal to Han Fei. (Ch. 63.) He was an able writ-er and composed a lengthy work bearing his name in fifty—five chapters. Ironically enough, it was in Ch'in, the state which more than any other ap-plied his principles and thus conquered the other states, that he died in prison in 2.33 B.C. The cause was a political intrigue on the part of his former fellow student, Li Ssu, who was an official in Ch in, and who may have been jealous of the growing favor accorded to Han Fei Tzu.
Before Han Fei Tzu, who was the last and greatest theorizer of the legalist school, there had been three groups, each with its own line of thought. One was headed by Shen Tao, a contemporary of Mencius, who held that shih was the most important factor in politics and government. Another was headed by Shen Pu-hai (died 337 B.C.), who stressed that shu was the most important factor. Still another was headed by Shang Yang, also known as Lord Shang (died 33$ B.C.), who, for his part, emphasized fa. Shih means power or au-thority; fa means law or regulation; shu means the method or art of conduct-ing affairs and handling men, i.e., "statecraft.
Han Fei Tzu considered all three alike as indispensable. He said: The intelligent ruler carries out his regulations as would Heaven, and handles men as if he were a divine being. Being like Heaven, he commits no wrong, and being like a divine being, he falls into no difficulties. His shih [power] enforces his strict orders, and nothing that he encounters resists him....Only when this is so can his laws [fa] be carried out in concert." (Han-fei-tzu, ch. 48-) The intelligent ruler is like Heaven because he acts in accordance with law fairly and impartially. This is the function of fa. He is like a divine being, because he has the art of handling men, so that men are handled without knowing how they are handled. This is the function of the shu. And he has the authority or power to enforce his orders. This is the function of shih. These three together are "the implements of emperors and kings" (ch. 43), no one of which can be neglected.
Legalist Philosophy of HLslory
Perhaps the Chinese traditional respect for past experience stems from the ways of thought of their overwhelmingly agrarian population. Farmers arc rooted to the soil and travel but rarely. They cultivate their land in accor-dance with seasonal changes which repeat themselves year after year. Past experience is a sufficient guide for their work, so that whenever they want to try something new, they first look back to past experience for precedent.
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This mentality has influenced Chinese philosophy a great deal, so that since the time of Confucius, most philosophers have appealed to ancient au-thority as justification for their own teaching. Thus Confucius ancient au-thorities were King Wen and the Duke of Chou, of the beginning of the Chou dynasty. In order to improve upon Confucius, Mo Tzu appealed to the au-ihority of the legendary Yii, who supposedly lived a thousand years earlier than King Wen and the Duke of Chou. Mencius, to gel the better of the Mo-hists, went still further back to Yao and Shun, who were supposed to have antedated Yii. And finally the Taoists, in order to gain a hearing for their ideas against those of both the Confucianists and Mohists, appealed to the authority of Fu Hsi and Shcn Nung, who were reputed to have lived several centuries earlier than either Yao or Shun.
By thus looking to the past, these philosophers created a regressive view of history. Although belonging to different schools, they all agreed that the golden age of man lies in the past rather than the future. The movement of history since then has been one of progressive degeneration. Hence man s salvation consists not in the creation of something new, but in a return to what has already existed.
To this view of history the Legalists, the last major school of the Chou pe-riod, took sharp exception. They fully understood the changing needs of the time and viewed them realistically. Although admitting that the people of an-cient times were more innocent and in this sense perhaps more virtuous, they maintained that this was due to material circumstances rather than to any in-herent superior goodness. Thus according to Han Fei Tzu, anciently there were few people but plenty of supplies, and therefore the people did not quarrel. But nowadays people do not consider a family of five children as large, and each child having again five children, before the death of the grandfather there may be twenty—five grandchildren. The result is that there are many people but few supplies, and that one has to work hard for a mea-ger return. So the people fall to quarreling." (Han-fei-tzu, ch. 49.)
Because of these completely new circumstances, according to Han Fei Tzu, new problems can only be solved by new measures. Only a fool can fail to realize this obvious fact. Han Fei Tzu illustrates this kind of folly with a story: "There was once a man of Sung who tilled his field. In the midst of the field stood a stem of a tree, and one day a hare in full course rushed against that stem, broke its neck, and died. Thereupon the man left his plough and stood waiting at that tree in the hope that he would catch another hare. But he never caught another hare and was ridiculed by the people of Sung. If, however, you wish to rule the people of today by the methods of government of the early kings, you do exactly the same thing as the man who waited by the tree....Therefore affairs go according to their time, and prepa-rations are made in accordance with affairs. (Ibid.)
Before Han Fei Tzu, Lord Shang already said similarly: "When the guid-ing principles of the people become unsuited to the circumstances, their
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standards of value must change. As conditions in the world change, different principles are practised. ' (Book of Lord Shang, II, 7.)
This conception of history as a process of change is a commonplace to our modern mind, but it was revolutionary viewed against the prevailing theo-ries of the other schools of ancient China.
Way of Government
To meet new political circumstances, the Legalists proposed new ways of government, which, as stated above, they claimed to be infallible. The first necessary step, according to them, was to set up laws. Han Fei Tzu writes: "A law is that which is recorded on the registers, set up in the government offices, and promulgated among the people. (Han—fei—tzu, eh. 38) Through these laws the people are told what they should and should not do. Once the laws are promulgated, the ruler must keep a sharp watch on the conduct of the people. Because he possesses shih or authority, he can punish those who violate his laws, and reward those who obey them. By so doing he can suc-cessfully rule the people, no matter how numerous they may be.
Han Fei Tzu writes on this point: "in his rule of a state, the sage does not depend upon men doing good themselves, but brings it about that they can do no wrong. Within the frontiers of a state, there are no more than ten peo-ple who will do good of themselves; nevertheless, if one brings it about that the people can do no wrong, the entire state can be kept peaceful. He who rules a country makes use of the majority and neglects the few, and so does not concern himself with virtue but with law. (Ch. 50.)
Thus with law and authority, the ruler rules his people. He need have no special ability or high virtue, nor need he, as the Confucianists maintained, set a personal example of good conduct, or rule through personal influence.
It may be argued that this procedure is not really foolproof, because the ruler needs ability and knowledge to make laws and keep a watch on the conduct of the people, who may be large in number. The Legalists answer this objection by saying that the ruler need not do all these things himself. If he merely possesses shu, the art of handling men, he can then get the right men to do everything for him.
The concept of shu is of philosophical interest. It is also one aspect of the old doctrine of the rectification of names. The term used by the Legalists for this doctrine is "holding the actualities responsible for their names.' (Han-fei-tzu, ch. 43.)
By "actualities," the Legalists mean the individuals who hold government office, while by "names," they mean the titles of the offices thus held. These titles are indicative of what the individuals who hold the office in question should ideally accomplish. Hence "holding the actualities responsible for their names," means holding the individuals who occupy certain offices re-sponsible for carrying out what should be ideally accomplished in these of-
260 HAN FEI TZU AND THE LECALIST SCHOOL
fices. The ruler's duty is to attach a particular name to a particular individu-al, that is to say, confer a given office upon a given person. The functions pertaining to this office have already been defined by law and are indicated by the name given to it. Hence the ruler need not, and should not, bother about the methods used to carry out his work, so long as the work itself is done and well done. If it is well done, the ruler rewards him; if not, he pun-ishes him. That is all.
It may yet be asked how the ruler is to know which man is the best for a certain office. The Legalists answer that this too can be known by the same shu or method of statecraft. Han Fei Tzu says: "When a minister makes claims, the ruler gives him work according to what he has claimed, but holds him wholly responsible for accomplishment corresponding to this work. When the accomplishment corresponds to this work, and the work corresponds to what the man has claimed he could do, he is rewarded. Tf the accomplish-ment does not correspond to the work, nor the work correspond to what the man has claimed for himself, he is punished. (Ch. 7-) After this procedure has been followed in several instances, if the ruler is strict in his rewards and punishments, incompetent people will no longer dare to take office even if it is offered to them. Thus all incompetents are eliminated, leaving govern-ment positions only to those who can successfully fill them.
Yet the problem still remains: How is the ruler to know whether an "actu-ality does in fact correspond to its name ? The Legalist reply is that it is up to the ruler himself, if he is uncertain, to test the result. If he is not sure that his cook is really a good cook, he can settle the matter simply by tasting his cooking. He need not always judge results for himself, however. He can appoint others to judge for him, and these judges will then, in their turn, be held strictly responsible for their names.
Thus, according to the Legalists, their way of government is really fool-proof. The ruler need only retain the authority of rewards and punishments in his own hands. He will then rule by "doing nothing, yet there is nothing that is not done."
Such rewards and punishments are what Han Fei Tzu calls the two han-dles of the ruler." (Ch. 7) Their effectiveness derives from the fact that il is the nature of man to seek profit and to avoid harm. Han Fei Tzu says: In ruling the world, one must act in accordance with human nature. In human nature there are the feelings of liking and disliking, and hence rewards and punishments are effective. When rewards and punishments are effective, in-terdicts and commands can be established, and the way of government is complete. "(Ch. 48.)
Han Fei Tzu, as a student of Hsiin Tzu, was convinced that human nature is evil. But he differed from Hsiin Tzu in that he was not interested in the latter s stress on culture as a means of changing human nature so as to make it something good. According to him and the other Legalists, it is pre-cisely because human nature is what it is, that the Legalist way of govern-
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ment is practical. The Legalists proposed this way of government on the as-sumption that man is what he is, i.e., naturally evil, and not on the assump-tion that he is to be converted into what he ought to be.
Legalism and Taoism
"Doing nothing, yet there is nothing that is not done.' This is the Taoist idea of wu wei, having-no-activity or non-action, but it is also a Legalist idea. According to Han Fei Tzu and the Legalists, the one great virtue re-quired of a ruler is lhat he follow the course of non—action. He should do nothing himself but should merely let others do everything for him. Han Fei Tzu says: "just as the sun and moon shine forth, the four seasons progress, the clouds spread, and the wind blows, so does the ruler not encumber his mind with knowledge, or himself with selfishness. He relies for good govern-ment or disorder upon laws and methods [shui; leaves right and wrong to be dealt with through rewards and punishments; and refers lightness and heavi-ness to the balance of the scale. (Ch. 29) In other words, the ruler possess-es the implements and mechanism through which government is conducted, and having these, does nothing, yet there is nothing that is not done.
