Lord Shang (died 338 BC)
Shang Yang (Gongsun Yang) is one of the most controversial and influential statesmen from the Ancient Period. Confucian orthodoxy presents him as an extremely brutal and central figure in the pantheon of Legalist thinkers (whom in general, they portray in extremely negative terms). Liberals and anti-Confucians portray him as a principled defender of the rule of law and a bulwark against authoritarianism.
Scholars doubt that the collection of writings bearing his name contains any of his own writings, but like other thinkers in China, it probably is an outgrowth of his influence. His philosophical influence stems primarily from the Hanfeizi crediting him with the theory of ding fa (fixing the standards) and yi min (treating the people as one). Much of the controversy is about the content of these notions and, in consequence, the moral significance of Shang Yang.
Shang Yang was a remote descendant of a once powerful family in the early Zhou period in China. Orthodox histories record that as a young man, he studied law. He worked for a minister in the Wei Kingdom (perhaps as a royal tutor). Then he went to the Qin where his modernizing strategies initiated the growth of Qin power that eventually made its unification of China in 221 BC possible. The Qin formed the historical dynasty from which China gets it Western name.
We can summarize Shang Yang's broad political strategy as substituting rationalized structures for the organic families and amorphous traditions that characterize Confucian feudalism. First, he exchanged the feudal division with a system of centrally chosen governors then set out to standardize local administration. This was the first step toward a unified system that combined localities into counties, counties into prefectures all supervised by central administration.
He enacted a series of measures to reduce the power of dominant families (e.g., by abolishing primogeniture). The eventual result was the first area in which the nuclear family was more dominant than the Confucian extended family. He argued that noble rank and privileges should attached only to those who measurably benefited the state. He particularly favored military merit and began to replace clan and extended family structures with military-style "groups of fives and tens." The groups inherited the family's political role and responsibility for controlling each other's behavior and susceptibility to group punishment.
At the same time, he enacted measures to stimulate economic growth and immigration. These included restriction on occupations that favored farming and military careers. Measures were taken to reward farmers who cultivated wasteland. He opened game and fishing reserves for agricultural development. He recruited labour from other states. The entire social-political structure aimed at economic wealth, large population and, as a result, state power.
These organizational moves may have been as important to his legacy as any of of Shang Yang’s novel legal theories. The powerful families were probably also responsible for his cruel death when he fell out of favor–he was tied to chariots and torn apart.
Hanfeizi, as noted, credited Shang Yang with the doctrine of dingfa (fixing the standards). This philosophy of social organization combined the existing practice of formal penal codes with the Mohist idea of operational or measurement-like standards of interpretation for guiding behavior. Mohists and the writers of the Goanzi likened fastandards to the craft-linked instruments like the compass, square, and plumb-line. The principle was that ordinary people, using "their eyes and ears" could get reliable guidance. Shang Yang's idea was that penal codes should be reformed to have that kind of objectivity, clarity and accessibility.
Shang Yang did not invent or initiate legal codes themselves. The historical evidence shows that laws in various forms had existed well within the Spring and Autumn period (according to some sources as early as 513 BC). Scholars think the move to more formal mechanisms of rule away from feudal conventions started with the beginning of the Zhou decline. Dengxi was recorded as having composed a bamboo penal code, and he engaged in litigation (as Confucius himself is reported to have done). Shang Yang, as we saw, studied law as a youth.
One scholar explains the point of the new institution quite clearly. "When punishments came to be regularized in statutes, rewards and punishments meted out to common people no longer totally depended on the whims of the aristocrats. Now they were provided with a reference point on the basis of which they could challenge their treatment. Dengxi’s Bamboo Penal Code appears to have served as the instrument for instructing the people how to make such challenges. . . . This was the crux of the that age’s great changes." (Ch’ien Mu, 1936:17)
That the idea of penal codes was well established at the dawn of the philosophical era is further confirmed by Confucius famous arguments against the rule of law and punishment.
"If you guide with the punishment institutions, people will do what is right, but they will not develop shame. If you guide them with conventional codes of behavior and order them with virtuosity, they will have a sense of shame and rule themselves." (Analects 2:3)
Let us call this argument Confucius' psychological objection to penal codes. It is based on the assumption that institutions of law and punishment will "exercise" the human tendency to self-interest more than the equally natural human tendency to social conformity. It is an argument that legal punishment is, in the long term, a self-defeating strategy for achieving social order. Social order is more likely to come from a moral education that instills good character in people.
There is another line of Confucian argument against rule of law, however. This one we can call the interpretive objection. Its core is a suspicion of using fixed codes of conduct to guide behavior. The Analects of Confucius does not give this objection in its classical form, but it does record Confucius complaining about glib moralists and, while observing that he was "good at" litigation, expressing an antipathy to litigation. Confucians (especially those tending toward Mencius' analysis) celebrate their liberation from the constraints of principle in favor of a cultivated, finely honed intuition for the complexities of the moral situation. The point is that using any code to guide behavior requires interpretation.
The Confucian faction, for partisan and theoretical reasons, argued for a monopoly on interpretation. They favored the traditional ritual code to positive legal guides since they could then insist that they were the competent interpreters. Early texts represent Confucius arguing that the use of legal codes, equally accessible to all, will result in the loss of the people's awe of those of noble rank. Ordinary people will be able to know the code and thus will not be subject to the judgment of people of rank. "As soon as people know the grounds on which to conduct disputation, they will reject the ritual and make their appeal to the written word."
Shang Yang's proposal targets the interpretive issue. He wants standards of behavior that are accessible, uncontroversial and relatively objective. He sympathizes with the people's point of view and, in language reminiscent of Confucius' psychological argument, argues against the Confucian preference for cultivated moral intuitions. "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." (Hsiao 1979:399) This sets a publicity condition for guiding discourse in the interest of the people. This liberal line of argument distinguishes Shang Yang from the Legalists thinkers such as Hanfeizi who argued only the ruler's point of view.
The important feature of Shang Yang's reforms was their emphasis on standardized, predictable, and reliable guidance. His military promotion rule was a famous example. Han Feizi cites the regulation which ties rank and salary increases specifically to the number of enemy heads cut off in battle.(Hanfeizi 43:17/6b/9-11) Two points about this frequently cited case deserve emphasis. First, it has a measurement-like objectivity: one rank per head. Second, it shows that the quest for measurement-like objectivity applies to rewards, promotions and salary as much as to punishment. The important thing is changing all code of guidance so they do not rely on intuitive, moral evaluation. Punishment and reward should not attach to motive or character, but to objective measurable performance. It should not require a cultivated (Confucian) moral intuition to apply it.
Shang Yang further instituted an elaborate system to spread knowledge of the law. He puts the liberal argument against Confucian authority albeit without the concept of individual rights. "Government officials and people who are desirous of knowing what the standards stipulate shall all address their inquiries to these standards officers, and they shall in all such cases clearly tell them about the standards and mandates about which they wish to inquire. Since the officials well know that the people have knowledge of fa and orders,. . .they dare not treat the people contrary to the fa. . ."
Shang Yang's line of argument targets the officials, not the people. Like his other reforms, the use of explicit laws and public, objective standards is aimed to break the power of traditional authorities over the people. Standardization pacifies by the people by giving them the means to avoid official coercion. In the hands of Hanfeizi, this justification subtly shifts so the point is made solely from the ruler's point of view. His version of Shang Yang's technique limits the officials' scope of unpredictable authority over the people. If they have to abide by measurement-like standards in punishing and rewarding, they cannot arbitrarily reward loyalty and punish enemies. Objective standards governing punishment and reward limit the officials scope of action and inhibits their ability to build grass-roots power bases.
At the same time, of course, Shang Yang was prepared to execute the law's punishments (usually quite draconian) whenever there was a violation. Scattered passages give some sense of retributive "appropriateness" of certain punishments. Mostly, however, he justifies punishments on Utilitarian grounds. The appropriate punishment is whatever is necessary to inhibit the targeted behavior. Death distressingly frequently plays this role.
His other reforms were intended to increase the efficiency in apprehending law-breakers. "Whoever did not denounce a culprit would be cut in two; whoever denounced a culprit would receive the same reward as he who decapitated an enemy; whoever concealed a culprit would receive the same punishment as he who surrendered to an enemy."
Other aspects of "retributive justice" emerge in the text. They include a kind of "equality before the law." This seems to be signaled in the other core idea according to Hanfeizi—yimin or treating the people as one. The law should not be adjusted for rank, even deserved rank from prior reward and performance. High officials are subject to the same punishments as commoners. The ruler himself should be guided by fa although he issues the edicts, commands and ordinances that are interpreted and implemented by them. Some passages suggest that the fa themselves cannot be changed by anyone.
The justifications of this mild form of application of law to the rulers are more pragmatic than would be a typical Western counterpart. The ruler’s consistency in conforming his own choices and behavior to fa makes him less subject to manipulation, flattery, etc. by officials. Instead of targeting his whims, biases, and preferences, the officials must concentrate on the objective standards of benefit to the state and society for their advancement and reward.
The mechanisms to prevent shading the administration of law to favor the advantaged severely constrained interpretation. The result was a negative one that best explains the eventual popular reaction against the legalist system. As in the West, ignorance of the law was no excuse. The standards were designed to be as simple and predictable as possible but Chinese thinkers had no recourse to the concept of a faculty of reason. The predictability could not depend on rational application of a concept of justice. It had to be a rigid application of measurement standards against actual effects of action. Intention, exceptional circumstances, and situational rule conflicts produced unacceptable juridical results. Theorists contextually had only the despised Confucian theory of cultivated moral intuition to go on. Given their theoretical opposition to that invitation to "rule of man" they probably felt they had no alternative to rigid application of the measurement-like standards. That way of construing the alternatives left the culture with a Hobsen’s choice and eventually doomed the fledgling "rule of law."
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Hansen, Chad (1993). "Meaning Change and Fa/Standards:Laws." Philosophy East and West 44, no. 3: 435-88.
Hsiao, Kung chuan (1979). A History of Chinese Political Thought, Volume I: From the beginnings to the Six Dynasties. Princeton: Princeton University Press.
Liang, Qichao (1930). History of Chinese Political Thought. London: Kegan Paul Trench Trubner & Co..
fixing the standards
Model, standards, law
treating the people as one