The Evolution of Legalism
and the Unification of China

 
A striking contrast to the ideal of minimalist government advocated by both Cofucians and Daoists is provided by the third great school of classical Chinese thought: Legalism (Fajia). As the name implies, Legalism emphasized techniques of government based on written law — clearly codified and strictly enforced. Legalism was even less of a formal academic philosophical “school” than Confucianism. ... Against Confucian morality and idealism, the Legalists are sometimes said to have offered realism. Though the virtuous example of a Sage King may, or may not, impel a few people to correct themselves, as the Confucians hoped, genuine Sage Kings are in practice rare. All people, however, are naturally driven by their pursuit of self-interest, and their behavior can therefore be modified, as desired, by drafting clear laws, backed by the powerful incentives of fixed rewards and punishments. ... The single-minded commitment to the state goals of building a “rich country and a strong army,” as the slogan had it, helped transform the Qin Kingdom, where Lord Shang served as prime minister in the fourth century BCE, into the most powerful of the Warring States, and eventually enabled it to unite all the other kingdoms into the first Chinese Empire. (HEA, 42-3)
c. 390-338 BCE
In 361 BC, the young nation of Qin gained the philosopher it deserved, a fugitive noble [from Wei] called Lord Shang. ... In his audience with Qin’s Educated Duke (r. 361-338 BC), he began by trolling out Confucian platitudes, in which the Duke had no real interest. It was only when Lord Shang dropped the pretense and began discussing harsh realities that the Duke perked up. By 359 BC, Lord Shang was not only a member of the Qin government, but had drawn up sweeping plans to improve the state with legal reform. Most of Lord Shang’s ideas ran in opposition to Confucian orthodoxy, and the duke was afraid that his country would once again be ridiculed as an ignorant upstart. But Lord Shang told his ruler that he could do it the Confucian way and get nowhere, or do it Lord Shang’s way and actually achieve something. ... Confucius worked on the principle that laws and rituals from bygone ages represented received wisdom, and that a wise man would not attempt to argue with such rules. The Educated Duke, however, was ready to hear a different idea — that ‘tradition’ was nothing more than a lie to keep the ignorant in check, and that the truly wise would do whatever was required. (FEC, 9-10)
 
Lord Shang’s Timeline
  • 361: During the first year of the reign of Duke Xiao, Shang Yang arrives in the kingdom of Qin
  • 359: In a court debate, Shang Yang impresses the duke and is put in charge of reforming the Qin administration
  • 356: Shang Yang is put in charge of military and political affairs. He undertakes a set of reforms which include:
    • Abolishing the hereditary privileges of the old aristocracy
    • Encouraging agriculture and restricting trade
    • Establishing laws for military awards
    • Organizing households into groups of five or ten and making all members responsible for the other members’ actions
    • Eliminating the land-consuming paths and banks marking the boundaries of farm land
    • Creating subdivisions of the kingdom (prefectures)
    • Standardizing weights and measures
  • 352: Shang Yang becomes the prime minister in addition to serving as military commander
  • 338: Duke Xiao dies and Shang Yang is dismembered by being tied to five chariots pulling in different directions — ironically a punishment that Shang himself had established in Qin law
Adapted from Li Yu-Ning (ed.), The First Emperor of China: The Politics of Historiography (White Plains, NY: International Arts and Sciences Press, 1975) and The Rise and Fall of the Qin (Ch’in) Empire. Cf. Jonathan Clements, The First Emperor of China (Albert Bridge Books, 2015), 9-13.
 
The Book of Lord Shang
The way to administer a state well is for the laws regulating officials to be clear; one does not rely on men to be intelligent and thoughtful. The ruler makes the people single-minded so they will not scheme for selfish profit. Then the strength of the state will be consolidated, and a state whose strength has been consolidated is powerful, but a country that loves talking is dismembered. (HEA, 43)

Punishments should know no degree or grade, but from ministers of state and generals down to great officers and ordinary folk, whoever does not obey the king’s commands, violates the interdicts of the state, or rebels against the statutes fixed by the ruler should be guilty of death and should not be pardoned. Merit acquired in the past should not cause a decrease in the punishment for demerit later, nor should good behavior in the past cause any derogation of the law for wrong done later. If loyal ministers and filial sons do wrong, they should be judged according to the full measure of their guilt, and if among the officials who have to maintain the law and to uphold an office, there are those who do not carry out the king’s law, they are guilty of death and should not be pardoned, but their punishment should be extended to their family for three generations. Colleagues who, knowing their offense, inform their superiors will themselves escape punishment. In neither high nor low offices should there be automatic hereditary succession to the office, rank, lands, or emoluments of officials. Therefore I say that if there are severe penalties that extend to the whole family, people will not dare to try [how far they can go], and as they dare not try, no punishments will be necessary. (Sources of Chinese Tradition, 197)
 
 
[Lord] Shang’s reforms created a harsh, fascistic society of snooping neighbours and hungry soldiers — a nation whose leaders were obliged by their very constitution to attack and expand beyond their borders. More importantly, they also created an efficient military state, with compulsory levies for public works, and a vast standing army of well-trained, well-equipped infantry. Qin’s new army was a game-changer in ancient China, dwarfing and outclassing the smaller, chariot-centered forces of other states, and dragging the entire continent’s military technology and practice into a new, large=scale form of conflict. This, in turn, destroyed much of the power-base of the local, city-absed [sic] aristocracies. Lord Shang forced every state to think on a national, all-encompassing level, in terms of its recruitment, its military operations, and its administration. Ultimately, his reforms would end the era of the dukes, and usher in a time that called for kings. (FEC, 11) 
 
Han Feizi
c. 280-233 BCE

Han Fei took his surname from the Han state, of whose royal family he was a member. In the previous centuries jockeying or power and influence, most other small states had been incorporated within the larger players. Han, a relatively minor land, probably only survived so long because of its relative insignificance. ... There were now two main power blocks among the six kingdoms. One was the so-called Horizontal Alliance, an east-west axis dominated by Qin. This was opposed by the north-south Vertical Alliance, which included Yan, the Land of Swallows, and Qi, the Land of the Devout. Much of the Han political debate of the time centered on which of these groups the people of Han should join — the Qin-appeasers of the Horizontals, or the brave resistance of the Verticals. ... The transcript of Han Fei’s memorial to Ying Zheng, On Preserving Han, shows a cunning mind at work as the philosopher pleads his case, outlining a series of reasons why an attack on Han would be a bad idea. (FEC, 59-62)
 
Thy servant has heard: “Who knows not but speaks, is not wise. Who knows but speaks not, is not loyal. Any minister, if not loyal, must be condemned to death. If what he speaks be not true, he must be condemned to death, too.” However, thy servant begs to speak all he has heard and entreats Your Majesty to convict him of whatever crime. ...
 
 
In these days, Ch’in has a territory, which, if the wider places are cut off to fill up the narrower places, extends over several thousand square li, plus a famous army counting by hundreds of thousands. In regard to the rewards and punishments carried out by her commands and orders as well as the advantages and disadvantages presented by her topographical features, no other country in All-under-Heaven can be compared to her. On coping with the world in the light of such gains, she can conquer and hold All-under-Heaven at her feet.
 
 
Therefore thy servant has in the face of the death-penalty prayed to have an audience of Your Majesty and speak of the right way whereby to break up the Perpendicular Union of All-under-Heaven, to take Chao and ruin Han, to subject Ching and Wey, to befriend Ch’i and Yen, in order thereby to secure the title of Hegemonic Ruler and lay all the neighbouring feudal lords under tribute. May Your Majesty therefore lend ear to this memorial! Should at one effort the Perpendicular Union not be broken, Chao not taken, Han not ruined, Ching and Wey not subjected, Ch’i and Yen not befriended, the title of Hegemonic Ruler not secured, and all the neighbouring feudal lords not laid under tribute, would Your Majesty behead thy servant as a warning to the whole country on a charge of disloyal counsel to the sovereign? (The First Interview with the King of Ch’in: A Memorial)

Han Fei on Law
If we had to depend on an arrow being absolutely straight by nature, there would be no arrow in a hundred generations. If we had to depend on a piece of wood being perfectly round by nature, there would not be any wheel in a thousand generations. There is not one naturally straight arrow or naturally round piece of wood in a hundred generations, and yet in every generation people ride carriages and shoot birds. Why? Because of the application of the methods of straightening and bending. Although there is a naturally straight arrow or a naturally round piece of wood [once in a hundred generations] which does not depend on any straightening or bending, the skilled workman does not value it. Why? Because it is not just one person who wishes to ride and not just one shot that the archer wishes to shoot. Similarly, the enlightened ruler does not value people who are naturally good and who do not depend on reward and punishment. Why? Because the laws of the state must not be neglected and government is not for only one man. Therefore the ruler who has the technique does not follow the good that happens by chance but practices the way of necessity. ... (A Source Book in Chinese Philosophy, 253-4 [Hanfeizi, Chapter 50])


Li Si
c. 280-208 BCE
 Li Si was one of Xunzi’s greatest pupils, although also one of his greatest disappointments. Whereas Xunzi saw imminent disaster in the advance of Qin, Li Si saw a golden opportunity. In his farewell address to his tutor, he told him that the skills he had learned made him highly desirable to any ruler, but that it was in his own interest to seek a master who had the best resources and the highest aspirations. ... ‘The King of Qin,’ said Li Si to his fuming tutor, ‘now desires to swallow up the world and rule with the title of Emperor.’ Rather than fight it like the noble Confucians of the other states, Li Si was ready to become part of it. He followed the money. (FEC, 38)
 
Abolishing Feudalism
The chancellor Wang Wan and others stated the opinion that, since the feudal rulers had just recently been defeated and the regions of Yan, Qi, and Jing were situated far from the capital, unless kings were set up in such regions it would be impossible to control them. They therefore requested that sons of the ruler be set up, if the emperor would be so kind as to give his approval.
       The First Emperor referred the proposal to the ministers for deliberation. The ministers all indicated their approval. But the commandant of justice Li Si voiced his opinion: “Kings Wen and Wu of the Zhou dynasty enfeoffed a great many of their sons, younger brothers, and other members of their own surname. Later, however, these men became increasingly estranged and even fell on one another like sworn enemies, and when the feudal rulers attacked each other in this manner, the Zhou Son of Heaven was helpless to restrain them. Now, thanks to the spiritual might of the sovereign, all the area within the seas has been united under a single rule and made into provinces and districts. If the sons of the ruler and the ministers who have won merit are rewarded with generous gifts from the public taxes, that will be quite sufficient. They can be easily controlled, and the world will be without dissension. This is the correct method for insuring peace. To establish feudal rulers would not be expedient.
       The First Emperor said, “It was because of the marquises and kings that the world suffered so long from unending strife and warfare. Now thanks to the aid of the ancestral spirits, the world has at last been pacified. If the feudal states are re-established, this will encourage the use of arms. To hope for peace and tranquility under such circumstances will be difficult indeed! The view of the commandant of justice is correct.”
 
 
Thus the empire was divided into thirty-six provinces [a.k.a. commanderies], each province provided with a governor, a military commandant, and a superintendent. The common people were renamed “black-headed ones”. There was great feasting. Weapons from all over the empire were confiscated, brought to Xianyang, and melted down to be used in casting bells, bell stands, and twelve men made of metal. These last weighed 1,000 piculs each and were set up in the palace. All weights and measures were standardized, the gauge of wheeled vehicles was made uniform, and the writing system was standardized. (Records of the Grand Historian: Qin, 44-5)
In former times when the world, torn by chaos and disorder, could not be united, different states arose and argued from the past to condemn the present, using empty rhetoric to cover up and confuse the real issues, and employing their learning to oppose what was established by authority. Now Your Majesty has conquered the whole world, distinguished between black and white, set unified standards. Yet these opinionated scholars get together to slander the laws and judge each new decree according to their own school of thought, opposing it secretly in their hearts while discussing it openly in the streets. They brag to the sovereign to win fame, put forward strange arguments to gain distinction, and incite the mob to spread rumors. If this is not prohibited, the sovereign’s prestige will suffer and factions will be formed amongst his subjects. Far better put a stop to it!
       I humbly propose that all historical records but those of Qin be burned. If anyone who is not a court scholar dares to keep the ancient songs, historical records, or writings of the hundred schools, these should be confiscated and burned by the provincial governor and army commander. Those who in conversation dare to quote the old songs and records should be publicly executed; those who use old precedents to oppose the new order should have their families wiped out; and officers who know of such cases but fail to report them should be punished in the same way.
       If thirty days after the issuing of this order the owners of these books have still not had them destroyed, they should have their faces tattooed and be condemned to hard labor at the Great Wall. The only books which should not be destroyed are those dealing with medicine, divination, and agriculture. Those who want to study the law can learn it from the officers. (Mountain of Fame, 47-8; cf. HEA, 48)
 
[The First Emperor said:] “I confiscated all the books from the empire and got rid of all those that were of not use. ... I have also directed people to question the various scholars residing in Xianyang, and it appears that some are spreading dubious stories in order to mislead the black-headed people!” He then ordered the imperial secretary to subject all the scholars to investigation. The scholars reported on one another in an attempt to exonerate themselves. Over 460 persons were convicted of violating the prohibitions, and were executed [note:  the word translated here as “executed” is sometimes interpreted as “buried alive”] at Xianyang, word of it being publicized throughout the empire so as to act as a warning to later ages. (Records of the Grand Historian: Qin, 58)
 
 
Emperor Wu (r. 141-87 BCE)
Confucian Sage or Legalist Tyrant?