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Legalism according to Schwartz
Legalism
according to Schwartz
In this chapter,
Schwartz provides not only a systematic introduction to Legalism, but also
to the background against which Legalism started. He traced the
beginning of Legalism to the time of Confucius and such Confucian
contemporaries as Tze-chan (Zi-chan), a ruler of a small state called
Cheng and an acquaintance/possible student of Confucius. Schwartz
argues that for the early Legalists, different from the Confucians who
championed the importance of self-cultivation and cultivation of the
family, they wanted uniform standards to govern the state to achieve more
effective and rapid results. We only need to read pp.321-335, and
339-343 (on Han Fei-zi).
1. Origin of the term "Legalism" (fa)
Fa: its meaning: model or standard.
The literal translation of fa, is method, or law; originally associated with hsing
(note, here, the hsing is not the same word meaning "human
nature." They have a slightly different tone in pronunciation in
Chinese. Many words in Chinese read identical but are different in
meaning and writing. This hsing here is a word that stands for
"punishment" or "torture." Although this word hsing
(punishment) is derived from another word, also pronounced hsing,
meaning form). (322-323)
Schwartz argues that historically,
although Confucians largely followed the li (rituals, rites) in social
stability, it was justified even by the Zhou Dynasty King Wu and Duke of Zhou,
classical figures to be admired according to Confucius, who allowed
punishments according to the penal code of the Shang Dynasty and to punish all
who were unfilial and the unfraternal. So the Confucian revulsion
against force was something developed later on. For early rulers, their
virtue was shown in both moral righteousness and righteous punishments.
(324)
Example of Tze-chan (Zi-chan), a
contemporary of Confucius, who practiced both li and statecraft to
advance the interest of his own state. (325)
Tze-chan was goal oriented. He
wanted to make the penal laws public: so people would have a clearer idea of
what to expect. Here Tze-chan had come to accept that human beings
naturally wanted to maximize pleasure and avoid pain (326-327); meaning they
did not necessarily have internal ethical judgment that would make them act
with a "constant heart:" behave in a moral/ethical way no matter
what the outside circumstances are, the Confucian ideal gentleman.
Schwartz also argues that Mohism, by
advocating humans without inner virtue, prepares the way for Legalism.
Mo Zi and the Legalists, to Schwartz, like modern Western behaviorists who
deny that there is anything innately true about human intentions or instincts,
do not believe in the inherent virtue of li or human nature, although,
in the case of Mo Zi, he did not completely deny the use of sentiments, such
as in his concept of universal love. (329)
The rise of Legalism was also related to
the rise of new rulers who had overthrown legitimate old rulers and who now
need new laws, not tradition, to justify and buttress their rule. (330)
2. The Confucian rebuttal.
Schwartz's explanation of the Confucian
rebuttal of Legalism is very similar to the 19th century English Utilitarians'
criticism of existent social mores and traditions: that laws only teach people
cunning by inspiring fear. Schwartz actually quotes the Utilitarians
here. They were a group of social reformers inspired by the Industrial
Revolution, who wanted to introduce new social values to replace the
(outdated, agrarian) social mores and practices. They argued that these
new social mores should be based on sympathy because existent laws and social
traditions relied on fear of punishment and of the pressure of public opinion
to control people's behavior, while stifling people's altruism. In an
ideal society, altruism, expressed in sympathy, should be the guidance for
people to promote their own and other people's happiness. Schwartz
argues that Confucians, like the Utilitarians, wanted fewer laws so humans
could exercise their innate moral virtue. (328)
3. Shang Yang (Lord Shang) and Han Fei-tzu
(Han Fei-zi)
Shang Yang, for a while Prime Minister of
the state of Chin (Qin) during the Warring States Period, is depicted by
Schwartz as a ruthless, pragmatic strategist who did not care to build a
theoretical justification for his policies based on the correspondence between
humans and the cosmos. (331) In here, the Legalists did not quite
belong to the majority of shi of their time, scholars who usually laced
their advice with some kind of cosmological justification: that it accorded
with the will of Heaven, with the Mandate of Heaven, with the qi of
Heaven, etc. Their justification of bypassing tradition is based on
change: e.g. in population, food, etc. (334)
In the case of Han Fei Zi (339- , we can
ignore any mention of Shen Pu-hai and Shen Tao here), his focus is on
universally public law to establish the ruler's authority. He wanted to
diminish the importance of individuals and heighten the importance of laws. It
is regular versus "charismatic" authority. (c.f.
our democratic system, how does Han Fei's view compare with our views
toward laws and individuals?) (340) Although Han Fei does not
deny the possibility of exceptional scholars and exceptionally
"enlightened rulers." (342-343)
Schwartz comments that from Lord Shang
and Han Fei's writings he could already foresee the 20th century Chinese
society with a strong modern state (after 1949, it was Communism), a
"reunification of the Chinese world under the hegemony of a state truly
dedicated to the Legalist science of wealth and power." (341)
Indeed, from late 19th century on, China pursued wealth and power under a
strong state, or at least the Chinese looked for the leadership of a strong
state. Schwartz's first book was on one leading champion of a
strong state and wealth and power in modern Chinese history. The reality
of 20th century Chinese history is more complicated than that, but certainly
the three components, strong state, wealth, power, were important goals
of the 20th century.
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