## 1. Defining the *fa* Tradition



The *fa* tradition is best known in European languages as the
"School of Law" or "Legalist school." As Paul
R. Goldin (2011) had demonstrated, this designation suffers from two
problems. First, the term *fa* does not necessarily mean
"law." Whereas this translation is surely correct in many
contexts (Lau and Ludke, forthcoming), *fa* can as often
refer to "standards," "models,"
"norms," "methods," and the like; sometimes it
refers to the entirety of political institutions. The
"Legalist" label is problematic because it inadvertently
focuses the studies of the *fa* tradition on a single issue of
its relation to the Western concept of the "rule of law."
Whereas this angle of discussion has certain merits, as was
demonstrated in China starting with Liang Qichao
Liang Qi Chao  (1873-1929) (see Liang [1906] 2003), it
becomes counterproductive when the richness and complexity of the
*fa* thought is subordinated to a single point, which was not
necessarily of primary importance for fa thinkers.



The second problem of the designation "School of Law" (or
"School of *fa*"; in Chinese *fajia*
Fa Jia ) is the term "school" or
"scholastic lineage" (*jia* Jia ). This term is
misleading because it implies a self-aware and organized intellectual
current of fa adherents on a par with the followers of
 Confucius
 Kong Zi  (551-479 BCE) or
 Mozi
 Mo Zi  (ca. 460-390 BCE). In contrast to their case,
however, the *fajia* label was designated primarily as a
bibliographic category under which intellectually related texts were
catalogized in the imperial libraries. As such this designation is
heuristically useful, but its usefulness fades once it is used as a
major analytical tool. Heated debates about whether or not a certain
thinker belongs to *fajia*, as occurred in the 1970s in China
(Chen Chuang 2019) and outside it (Creel 1974: 137-162), are of
little scholarly value, because no early thinker identified himself as
a member of the "School of *fa*" in the first
place.



The weaknesses of the "Legalist" or "School of
Law" label were well known to Western scholars who tried to find
a better translation for *fajia*, e.g. "Realists"
(Waley 1939). Recently, this designation was defended and elaborated
by Kai Vogelsang (2016), who noted the appropriateness to
*fajia* of Hans Morgenthau's definition of
 political realism
 as an approach that "sets politics as an autonomous sphere of
action and understanding apart from other spheres, such as economics,
ethics, aesthetics, or religion" (Morgenthau 1978: 5). This
designation has its merits, but it may be problematic because,
*pace* Morgenthau and Vogelsang's intention, it may
inadvertently create an impression that the opponents of
*fajia* were mere idealists, which was not the case. A more
neutral designation, adopted in Pines (forthcoming A) is the fa
tradition, which will be employed in this article aside from the cases
in which the texts specifically speak of *fajia*.



The grouping of several thinkers as belonging to the common
intellectual tradition (the would be *fajia*) can be traced to
Han Fei Han Fei  (d. 233 BCE), who is often considered the
most significant representative of this intellectual current. In
chapter 43, "Defining the standards" of *Han Feizi*
Han Fei Zi , the thinker presents himself as a
synthesizer and improver of the ideas of two of his predecessors,
Shang Yang Shang Yang  (d. 338 BCE) and Shen Buhai
Shen Bu Hai  (d. 337 BCE). Pairing Shen Buhai and Shang
Yang, and adding Han Fei himself to them became common from the early
Han dynasty (see, e.g. *Huainanzi* 6: 230; 11:423; 20: 833).
The historian Sima Qian Si Ma Qian  (ca. 145-90
BCE) identified these three thinkers as adherents of the teaching of
"performance and title" (*xingming*
Xing Ming ) (*Shiji* 62: 2146; 68: 2227), the term which
remained a secondary designation of the fa tradition thereafter (Creel
1974: 140; and see 4.2 below). The fourth thinker commonly associated
with fajia--Shen Dao Shen Dao  (fourth century
BCE)--also figures prominently in Han Feizi, where a whole
chapter (40, "Objection to positional power") is dedicated
to the defense and improvement of Shen's ideas (Pines 2020a).
These four thinkers (or, more precisely, the texts associated with
them) form the core of the *fa* tradition.



The term *fajia* was coined by Sima Qian's father, Sima
Tan Si Ma Tan  (d. 110 BCE) in his essay "On the
Essentials of the Six Schools of Thought." Sima Tan noted that
*fajia* were "strict and have little kindness," and
that they "neither distinguish between kin and stranger, nor
differentiate between noble and base: everything is determined by the
standard (or law, *fa*)." Sima Tan criticized the
*fajia* approach as "a one-time policy that could not be
constantly applied," but also hailed these thinkers for
"honoring rulers and derogating subjects, and clearly
distinguishing offices so that no one can overstep [his
responsibilities]" (*Shiji* 130: 3289-3291; for
translations cf. Smith 2003: 141; Goldin 2011: 89). A century later
the bibliographical category of *fajia* was created. The Han
librarian Liu Xiang Liu Xiang  (79-8 BCE) applied this
designation to ten texts in the Han imperial library (Hanshu 30:
1735). Thenceforth this term remained a major category of book
catalogues well into the end of China's imperial era.


### 1.1 Major *fa* Texts



Of the ten *fajia* texts in the Han imperial catalogue, six
ceased circulating more than a millennium ago; two arrived at our days
relatively intact, and of two others only a few fragments survived the
vicissitudes of time. The earliest (in terms of its composition)
surviving text is the *Book of Lord Shang*
(*Shangjunshu* Shang Jun Shu ), attributed to Shang
Yang (aka Gongsun Yang Gong Sun Yang  or Lord Shang/Lord of
Shang Shang Jun ), a major reformer who orchestrated the rise of
the state of Qin Qin  to the position of a leading power in the
Chinese world. In the process of transmission, the book lost at least
five chapters; a few others had been badly damaged, becoming barely
legible. Since the late 18th century, efforts have been made to
prepare a critical edition of the text and amend its corrupted parts;
yet more than two centuries passed before the comprehensive critical
edition was published (Zhang Jue 2012). The text is highly
heterogeneous in terms of the dates of its composition: some chapters
were likely penned by Shang Yang himself; others may come from the
hand of his immediate disciples and followers, and a few other were
written decades and even more than a century after his death (Pines
2016a). This said, the text presents a relatively coherent ideological
vision, and it is likely that it reflects intellectual evolution of
what Zheng Liangshu (1989) dubbed Shang Yang's
"school" (*xuepai* Xue Pai ). The text
merited two translations into English: Duyvendak ([1928] 1963) and
Pines (2017).



The second surviving text, *Han Feizi*, is attributed to Han
Fei, a scion of the ruling family from the state of Han
Han  (not to be confused with the Han Han  dynasty), a
tragic figure who was allegedly killed in the custody of the King of
Qin, whom Han Fei wanted to serve. Of all the *fa* texts in the
Han imperial catalogue, *Han Feizi* fared the best over the
vicissitudes of time: all of its 55 chapters attested in the Han
catalog are still intact. The issue of whether or not the entire book
had been penned by Han Fei is debatable: considerable differences
among the chapters in terms of style and mode of argumentation lead
not a few scholars to suspect that they come from different authors
(e.g., Queen 2013). On the other hand, the differences may be
explained as reflecting the process of Han Fei's intellectual
maturation, or the need to adapt argumentation to different audiences;
overall, most of the chapters present a fairly coherent outlook (cf.
Goldin 2020: 222-28 and Pines, forthcoming B). *Han
Feizi* is considered as philosophically and literally more
engaging than the *Book of Lord Shang*, and it has been more
widely studied in China, Japan (Sato 2013b), and in the West. It
merited one full English translation (Liao 1939-1959), with a
new one (Harbsmeier, which is borrowed, with modifications, below)
forthcoming. In addition, many chapters have been translated by Burton
Watson (2003).



Two other *fa* texts mentioned in the Han imperial catalog did
not survive intact, but lengthy quotations from them in the imperial
encyclopedia have allowed partial reconstruction of their content.
*Shenzi* Shen Zi  is attributed to Shen Buhai, who
acted as a chancellor of the state of Han Han  in the
middle fourth century BCE, and who is credited with major
administrative improvement there. Of the original six chapters fewer
than three dozen fragments remain intact; for a comprehensive study
cum translation see Creel 1974. Another text, *Shenzi*
Shen Zi  is attributed to Shen Dao Shen Dao , of whom
very little is known (it is even possible that the figure of Shen Dao
is a conflation of several personalities; see Xu Fuhong 2013:
2-8). Of original 42 chapters, seven survived (albeit in an
incomplete form) in a seventh-century CE encyclopedia; altogether over
120 surviving fragments of the text are considered authentic (Thompson
1979; cf. Xu Fuhong 2013). The text merited a full English translation
cum study (Harris 2016). In what follows, to avoid confusion between
*Shenzi* and *Shenzi*, they will be referred
to as works of Shen Buhai and Shen Dao respectively.



The above four texts are the major repository of the *fa*
thought. Whereas they differ in terms of philosophical sophistication,
modes of argumentation, lexicon, and emphases, overall they present a
sufficiently coherent outlook to merit their grouping together as
belonging to a single intellectual tradition. Another major text that
ever since the Sui Sui  dynasty (581-618) had been
reclassified as belonging to *fajia* is *Guanzi*
Guan Zi . *Guanzi* is nominally attributed to a major
reformer, Guan Zhong Guan Zhong  (d. 645 BCE) from the state of
Qi Qi , but in reality it is a heterogeneous collection of essays
produced between the fourth and second centuries BCE (Rickett 1985:
8-24). Some (but not all) of the *Guanzi* chapters
clearly belong to the *fa* tradition (Sato, forthcoming). The
whole of *Guanzi* was translated into English by Rickett
(1985-1998).



In addition to the above, traces of *fa* thought are found in a
few chapters of other multi-authored compilation, such as
*Lushi chunqiu* Lu Shi Chun Qiu  (composed
ca. 240 BCE) and *Huainanzi* Huai Nan Zi  (composed
ca. 139 BCE; see Ames 1994). The impact of the *fa* tradition
is visible in memorials of early imperial statesmen, most notably of
the man who is considered the architect of the Qin Empire
(221-207 BCE), Li Si Li Si  (d. 208 BCE) (see Bodde
1938). Another statesman who is often identified as belonging to the
*fa* tradition is an early Han minister, Chao Cuo
Chao Cuo  (d. 154 BCE; Schwermann, forthcoming). Yet a few
generations into the Han dynasty, the *fa* tradition started
losing its prestige and vitality. Although several Han and later texts
were intermittently classified as *fajia*, this identification
remains too arbitrary to merit the inclusion of these texts in the
current discussion.


### 1.2 Historical Context



The fa tradition is just one of the many intellectual currents that
flourished in China during the three centuries prior to the imperial
unification of 221 BCE. This period, often identified as the age of
the "Hundred Schools" was particularly rich in terms of
political thought. This outburst of interest in political issues took
place against the backdrop of a severe systemic crisis. The end of the
Springs-and-Autumns period (Chunqiu Chun Qiu , 770-453
BCE) was marked by the progressive disintegration of political
structures in the Zhou Zhou  (the then Chinese) world. Gradually,
the realm became entangled in a web of debilitating struggles among
rival polities, between powerful nobles and the lords within each
polity, as well as among aristocratic lineages and among rival
branches within major lineages. By the fourth century BCE, a degree of
re-centralization in individual polities was achieved, but interstate
warfare further intensified, giving, in retrospect, the new era an
ominous name: the age of the Warring States (Zhanguo Zhan Guo ,
453-221 BCE). As wars became bloodier and more devastating, and
with no adequate diplomatic means to settle the conflicts in sight,
most thinkers and statesmen came to an understanding that unity of
"All-under-Heaven" (*tianxia* Tian Xia ) was
the only means to attain peace and stability (Pines 2000). How to
bring this unity about and how to "stabilize
All-under-Heaven" became the central topic addressed by
competing thinkers. In the final account, the *fa*
tradition's ability to provide the most compelling answers to
this question became the singular source of its ideological
appeal.



Crises and bloodshed aside, the Warring States period was also an age
rife with opportunities for intellectually active individuals. It was
an exceptionally dynamic period, marked by novel departures and
profound changes in all walks of life. Politically, the loose
aristocratic entities of the Springs-and-Autumns period were replaced
by centralized and bureaucratized territorial states (Lewis 1999).
Economically, the introduction of iron utensils (Wagner 1993)
revolutionized agriculture, allowing higher yields, prompting the
development of wastelands, and bringing about demographic growth, as
well as accelerating urbanization and commercialization of the
economy. Militarily, new technologies, such as the crossbow, as well
as new forms of military organization, brought about the replacement
of aristocratic chariot-led armies by mass infantry armies staffed by
peasant conscripts, resulting in a radical increase in warfare's
scale and complexity (Lewis 1999). And socially, the hereditary
aristocracy that dominated the Zhou world during most of the Bronze
Age (ca. 1500-400 BCE) was eclipsed by a much broader stratum of
*shi* Shi  (sometimes translated as "men of
service"), who owed their position primarily to their abilities
rather than the pedigree (Pines 2009: 115-135). These profound
changes required new approaches to a variety of administrative,
economic, military, social, and ethical issues: old truths had to be
reconsidered or reinterpreted. For intellectuals eager to tackle a
variety of new questions--and particularly for fa
thinkers--this was a golden age.



Each of the competing "schools of thought" sought ways to
improve the functioning of the state, to attain sociopolitical
stability, and to bring about peace under Heaven; yet among a variety
of answers those provided by the fa thinkers appear to be most
practical. This is not incidental: after all, some of the major
*fa* thinkers, most notably Shang Yang, were the leading
reformers of their age. These thinkers were at the forefront of
administrative and sociopolitical innovation; they were most ready to
dispense with bygone norms and paradigms; and they were more pragmatic
and result-oriented than most of their ideological rivals. Their
recipes proved to be highly effective in the age of fierce interstate
competition, but once the imperial unification was attained and the
need in full mobilization of human and economic resources receded, the
appeal of the *fa* ideas weakened as well (section 7 below). By
then, the lingering resentment against the *fa* thinkers'
cynicism and their perceived anti-intellectualism resulted in the
increasing denigration of the *fa* tradition in general (Song,
forthcoming B). In retrospect, Sima Tan's observation appears to
be correct: the *fa* recipes were highly effective in the short
run but less attractive in the long term.


## 2. Philosophical Foundations



The *fa* tradition is at times compared with modern social
sciences (Schwartz 1985), and this comparison grasps well some of its
characteristics. Angus C. Graham (1989: 269) notes that
"Legalists" were the first political philosophers in China
"to start not from how society ought to be but how it is."
Indeed, this was the most practical-oriented of all preimperial
intellectual currents. Its proclaimed goal was to attain "a rich
state and a strong army" (*fu guo qiang bing*
 Fu Guo Qiang Bing ),[1]
 which would be the precondition for future unification of the entire
subcelestial realm. The thinkers' focus was on how to attain
this goal, and less on philosophical speculations. The *fa*
texts neither subordinate the political action to moralizing
discourse, nor claim conformity to divine will--topoi that recur
in the writings of the followers of Confucius and Mozi. Cosmological
stipulations of political order, which became hugely popular after the
 *Laozi*
 Lao Zi  (fourth century BCE) are of slightly higher
importance for the *fa* thinkers: they are referred to in some
of Shen Buhai and Shen Dao's fragments and, more notably, in
several chapters of the *Han Feizi*. Yet these speculations are
not essential for these thinkers' arguments: hence, pace
attempts to consider cosmological digressions of Han Feizi as
foundations of its political philosophy (Wang and Chang 1986), it
would be more accurate to see them as argumentative devices that were
"not fully assimilated" into Han Fei's thought
(Graham 1991: 285; cf. Goldin 2020: 223-26). Generally, the
*fa* texts display considerable philosophical sophistication
only when they have to justify departures from conventional approaches
of other intellectual currents. In this regard their views of
historical evolution and of human nature are highly engaging. These
are the foundations for the overarching principle of the *fa*
thought: the insistence on the rule by impartial standards as
advantageous over reliance on human factor in politics.


### 2.1 Evolutionary view of History



The Warring States period was an age of comprehensive sociopolitical
change, and thinkers of different intellectual affiliations had to
come to terms with this change. The majority tried to accommodate it
within the framework of the "changing with the times"
paradigm (Kern 2000: 170-174). Namely, certain innovations and
modifications of existent policies are inevitable, but these do not
require a radical overhaul of the current sociopolitical system, and
do not undermine the usefulness of the past as a guideline for the
present. The *fa* thinkers, by contrast, readily dispensed with
traditional modes of rule; they questioned the very relevance of the
past to the present. They dismissed "the assumption that despite
the difference between past and present there remains a fundamental
correspondence between them," promoting instead the idea of
"sequential history" which justified radical departures
from earlier sociopolitical patterns (Vogelsang, forthcoming). Their
attack on supporters of emulating the past was twofold. First, there
was simply no uniform model of orderly rule in the past to be
conformed to. Second, and more importantly, society evolves, and this
evolution turns behavioral modes, institutions, and even values of the
past obsolete.



The first of these arguments is presented in chapter 1,
"Revising the laws," of the *Book of Lord Shang*.
Shang Yang argues: 



> 
> 
> Former generations did not adopt the same teaching: So which antiquity
> should one imitate? Thearchs and Monarchs did not repeat one another:
> So which rituals should one conform to? ... There is no single way to
> order the generation; to benefit the state, one need not imitate
> antiquity. (*Book of Lord Shang* 1.4)
> 
> 
> 



Han Fei adds another reason for dismissing the past models: we simply
cannot verify exactly what they were. Those who claim the authority of
antiquity--such as adherents of Confucius and Mozi--cannot
agree which lessons of the past are to be applied in the present: 



> 
> 
> He who claims certain knowledge without examining the issue is a fool;
> he who relies on things which are impossible to ascertain is an
> impostor. Thus, those who openly adduce the former monarchs as
> evidence and claim they can determine indubitably [the way of the
> paragon legendary rulers] Yao and Shun, are either fools or impostors.
> (*Han Feizi* 50.1, "Illustrious teachings")
> 
> 
> 



Yet having postulated the impossibility of learning from the past
models, Shang Yang and Han Fei propose an alternative lesson that can
be learnt: that changing circumstances may require not a piecemeal but
a comprehensive readjustment of the sociopolitical system. To
demonstrate the magnitude of change in the past, both thinkers turn to
remotest antiquity, and trace how the state was formed. For instance,
Shang Yang presents the story of social evolution from primeval
promiscuous life to an incipient stratified society and then to a
fully mature state with laws, regulations, officials, and the power of
coercion (*Book of Lord Shang* 7.1, "Opening the
blocked"). At the earlier stages of human history, the people
could be constrained by moral suasion; yet this was only because that
was the age of relative abundance. Han Fei further explains: in the
remote past "the people were few whereas goods were plenty;
hence people did not compete." Yet this age of primeval morality
has gone forever because of the devastating impact of demographic
growth: "Nowadays, five children are not considered too many,
and each child also has five children; the grandfather is still alive,
and he already has twenty-five grandchildren. Therefore, the people
are plenty whereas commodities and goods are few; people work
laboriously, but provisions are scanty; hence the people
compete" (*Han Feizi* 49.2, "Five vermin").
Under these new circumstances, moral norms are no longer sufficient to
control social contention; it can be quelled only through
coercion.



The evolutionary view of history and especially the understanding that
material conditions can alter moral values, distinguish the
*fa* thinkers critically from proponents of alternative models
of state formation (Pines 2013a). The *fa* texts imply that
everything is changeable: as socioeconomic conditions change, human
behavior changes as well; and this in turn requires adaptation of
political institutions. Shang Yang summarizes:



> 
> 
> When the affairs of the world change, one should implement a different
> Way. ... Therefore, it is said: "When the people are
> ignorant, one can become monarch through knowledge; when the
> generation is knowledgeable, one can become monarch through
> force." (*Book of Lord Shang* 7.1-7.2,
> "Opening the blocked")
> 
> 
> 



The last phrase represents the rationale behind Shang Yang's
model of state formation. If radical restructuring of society was
legitimate in the past, so it is in the present. In the current
situation, when the people are "knowledgeable," a powerful
state, which is able to coerce its subjects, is the only viable
solution. The *Book of Lord Shang* (but not *Han Feizi*)
allowed for the possibility that in the future the need for excessive
reliance on coercion would end, and a milder, morality-driven
political structure would evolve; but these utopian digressions are of
minor importance in the text (Pines 2013a). Unlike supporters of
historical progress in the Occident, the *fa* thinkers never
developed a philosophy of history, nor the idea of its telos
(Vogelsang, forthcoming). What mattered for them was the bottom line:
radical reforms were inevitable in the past; and they are inevitable
in the present.


### 2.2 Human Nature



The second pillar of the fa political philosophy is the view of human
nature (or, as Harris [forthcoming] prefers to call it, human
motivations). The *fa* texts eschew the discussion of whether
or not human badness or goodness are inborn, or whether or not all
humans possess fundamentally similar qualities. What matters is,
first, that the overwhelming majority of humans are selfish and
covetous; second, that this situation cannot be changed through
education or self-cultivation; and, third, that this selfishness can
become an asset to the ruler rather than a threat. That "the
people follow after benefit as water flows downward" (*Book
of Lord Shang* 23.3, "Rulers and ministers") is a
given: the task is to let the people satisfy their desire for glory
and riches only in the ways that accord with the state's needs.
The *Book of Lord Shang* explains:



> 
> 
> Wherever the name (repute) and benefit meet, the people will go in
> this direction.... Farming is what the people consider bitter;
> war is what the people consider dangerous. Yet they brave what they
> consider bitter and perform what they consider dangerous because of
> the calculation [of a name and benefit]. ... When benefits come
> from land, the people exhaust their strength; when the name comes from
> war, the people are ready to die. (*Book of Lord Shang*
> 6.4-6.5, "Calculating the land")
> 
> 
> 



That people covet wealth was a commonplace in the texts of competing
thinkers; but the *Book of Lord Shang* adds a second universal
motivating force--the quest for "a name"
(*ming* Ming ), a term that refers both to fame and
reputation and to enhanced social status (Pines 2020b; cf. Lewis
2021). This quest should be properly understood and manipulated so as
to direct the people to the pursuits deemed necessarily by the state,
viz. agriculture and warfare (see section 3 below).



The *fa* thinkers' view of the people as covetous and
selfish was not exceptional to this intellectual current: it was
shared, among others, by the major Confucian thinker,
 Xunzi
 Xun Zi  (d. after 238 BCE). Yet unlike Xunzi and other
Confucian thinkers, the *fa* texts dismiss the possibility that
elite members--the cultivated "noble men"
(*junzi* Jun Zi )--would be able to overcome
their selfishness. Hence, the *fa* thinkers dismiss the common
recommendation to staff the government with morally upright
"noble men" as naive if not outright manipulative.
Shen Dao explains:



> 
> 
> Among the people, everybody acts for himself. If you [try to] alter
> them and cause them to act for you, then there will be none whom you
> can attain and employ. ... In circumstances where people are not
> able to act in their own interests, those above will not employ them.
> Employ the people for their own [interests], do not employ them for
> your sake: then there will be none whom you cannot make use of.
> (Harris 2016: 112)
> 
> 
> 



Shen Dao dismisses the possibility that officials will be driven by
moral commitment; actually, such exceptional selfless individuals
should not be employed at all. This sentiment recurs in *Han
Feizi*, a text that expresses with utmost clarity its belief that
every member of the elite--like any member of
society--pursues his own interests (Goldin 2020: 201-28).
Like Shen Dao, Han Fei acknowledges the existence of selfless
individuals, such as lofty recluses who despise glory and riches, but
dismisses them as politically useless. As for morally upright
officials, these are too rare individuals to be relied upon.
"Today, there are no more than ten honest and trustworthy men of
service (*shi* Shi ), but there are hundreds of offices
within the boundaries. If you insist on exclusively appointing honest
and trustworthy men of service, then there will be not enough people
for the official positions" (*Han Feizi* 49.11,
"Five vermin").



Having dismissed the common expectation that top echelons of political
system would be filled in with morally cultivated persons, the
*fa* thinkers propose an alternative. A proper system should be
based on impersonal standards and norms, which would function well
under any type of political leaders.


### 2.3 The rule by impartial standards and the principle of impartiality



Early in the twentieth century, Liang Qichao identified the difference
between the *fa* thinkers and their Confucian rivals as the
dichotomy between the rule of *fa* (*fazhi*
Fa Zhi ) over the "rule of men" (*renzhi*
Ren Zhi ). This correct observation generated considerable
confusion, because the compound *fazhi* is used in modern
Chinese for the Western "rule of law." Putting aside the
debates about the similarities and dissimilarities between the rule of
*fa* and the "rule of law," it is advisable to
analyze the former on its own terms rather than through the prism of
Occidental thought. 



Graziani (forthcoming) notes that the concept of *fa* was
initially associated with precision tools--such as T-squares,
compasses, weights, and measures--which were considered more
reliable than individual skills of artisans or merchants. Similarly,
in the political sphere, *fa*--referring to an entirety of
impersonal norms, laws, regulations, and institutional
solutions--was deemed more reliable than the habitual appeal to
the incumbents' personal abilities and moral qualities. Han Fei
explains:



> 
> 
> For correcting the oversights of superiors, for prosecuting the
> wickedness of subordinates, for bringing order to chaos and sorting
> out tangles, for removing the superfluous and evening out the wrong,
> and for uniting the tracks of the people, nothing is as good as
> *fa*. (*Han Feizi* 6.5, "Having
> standards")
> 
> 
> 



To become effective regulator of sociopolitical life,
*fa*--especially in its meaning as
"law"-- must be fair and transparent. Fairness means
that laws are applicable equally to every subject, and even the ruler
himself should strictly observe them. Whereas the ruler has the
right--actually the duty--to alter the laws when the
circumstances demand this--he is actively dissuaded against
whimsical intervention in current laws and norms. Thus, he should
abide by the fixed rules of promotion and demotion and never allow
personal favorites to be promoted at the expense of truly meritorious
servants (see more in 5.2). As for transparency, it means that laws
should be understood by everybody. Han Fei clarifies:



> 
> 
> As for *fa*, it is compiled and written down on charts and
> documents, deposited in the repositories of the offices and
> promulgated to the hundred clans. ... Therefore, when the
> clear-sighted ruler speaks of *fa*, everyone within his
> frontiers, including the lowly and base, will hear and understand it.
> (*Han Feizi* 38.8.2, "Objections 3")
> 
> 
> 



The principle of transparency and the importance of legal knowledge of
the populace (including "the lowly and base") stands also
at the center of chapter 26 ("Fixing divisions") of the
*Book of Lord Shang*. As such *fa* is not a tool of
intimidation and suppression as is often imagined (despite the
notorious advocacy of harsh punishments in the *fa* texts).
Rather it refers to common rules of the game that should be
internalized by every political actor.



The rule by impersonal standards is not just the most effective way of
overcoming personal inadequacies of the incumbents. It is also the
moral way, insofar as morality is represented by the principle of
impartiality rather than by Confucian insistence on "benevolence
and righteousness" (*renyi* Ren Yi ) (Jiang
2021: 267 ff.). Impartiality (*gong* Gong ) is the opposite
of selfishness (*si* Si ). It also stands for the common
interests of the people. Whereas the term *gong* normally
refers to the ruler ("duke," or "regional
lord"), which implies that "common" interests of the
subjects are identical to those of the sovereign (Liu Zehua 2003:
332-373; Goldin 2020: 204-205), in practice the two were
differentiated (see section 5.2). An impartial *fa* was not
just the means to improve the ruler's governance but also the
best means to overcome the ruler's potential ineptitude.


## 3. Tillers and Soldiers: Ruling the People



The *Book of Lord Shang* is the text that addresses most
systematically the issue of major concern to the Warring States-period
rulers: how can the state survive in the age of perennial war? The
answer--anticipating modern ideas of "total
war"--was total utilization of the state's material
and human resources for the military success. Practically, this meant
directing the entire population to two essential occupations:
agriculture and warfare, which, in the *Book of Lord Shang*,
are jointly dubbed "the One" (*yi* Yi ). Then,
"when an army is dispatched, provisions are ample, and resources
are abundant; when the army is at rest, the people are working, and
the accumulated [surplus] suffices for a long time" (*Book of
Lord Shang* 6.2, "Calculating the land").



To cause every subject engage in utterly unattractive tasks of tilling
and fighting, Shang Yang recommends the ruler to manipulate his
subjects' natural dispositions. The text explains:



> 
> 
> Human beings have likes and dislikes; hence, the people can be ruled.
> The ruler must investigate likes and dislikes. Likes and dislikes are
> the root of rewards and penalties. The disposition of the people is to
> like ranks and emoluments and to dislike punishments and penalties.
> The ruler sets up the two in order to guide the people's will
> and to establish whatever he desires. (*Book of Lord Shang*
> 9.3, "Implementing laws")
> 
> 
> 



To properly motivate the people, the ruler should employ a combination
of positive (rewards, ranks, emoluments) and negative (punishments,
penalties) incentives. The institutions of the state (*fa* in
its broadest meaning) should be designed so as to channel social
forces toward desirable social and political ends. This approach,
which curiously resembles modern ideas of social engineering (Pines
2016b), is the hallmark of Shang Yang's intellectual
audacity.


### 3.1 Punishments



Shang Yang gained notoriety as a people-basher. The text attributed to
him indeed appalls the readers with provocative pronouncements, such
as "When the people are weak, the state is strong. Hence the
state that possesses the Way devotes itself to weakening the
people" (*Book of Lord Shang* 20.1, "Weakening the
people"). Elsewhere, the author insists that to succeed in his
undertakings, the ruler should "control the people as the
metalworker controls metal and the potter clay... Those who excel at
orderly rule block the people with law; then a [good] name and lands
can be attained." (*Book of Lord Shang* 18.2,
"Charting the policies"). Similar pronouncements permeate
the text.



No other thinker matches Shang Yang's brazennes in exposing the
perennial contradiction between society ("the people") and
the state. In the age when the people are "knowledgeable and
crafty," coercion is the only mean to rein them in. This
explains the pivotal role of the punitive system in Shang Yang's
model. Harsh punishments should be imposed even on minor or even
"about to be committed" transgressions. The system of
mutual responsibility among neighbors and kin, tight residential
control, and mandatory denouncement of crimes would ensure that every
criminal is apprehended. Yet once the populace is overawed, the
punishments become redundant:



> 
> 
> To prevent wrongdoing and stop transgressions, nothing is better than
> making punishments heavy. When punishments are heavy and [criminals]
> are inevitably captured, then the people dare not try [to break the
> law]. Hence, there are no penalized people in the state. When there
> are no penalized people in the state, it is said, then:
> "Clarifying punishments [means] no executions." (*Book
> of Lord Shang* 17.3, "Rewards and punishments")
> 
> 
> 



Harshness is essential for the system's success, but so is the
laws' transparency and fairness (above, section 2.3). The
ultimate goal is to "eradicate punishments with
punishments" (*Book of Lord Shang* 18.1, "Charting
the policies"). To a certain degree, this goal was achieved.
Actually, even such critics of Shang Yang as Sima Qian acknowledged
his success in turning the Qin people into law-abiding subjects
(*Shiji* 68: 2231).


### 3.2 Rewards: The Ranks of Merit



Coercion aside, positive incentives are equally important for Shang
Yang's program. As the text readily recognizes, the people are
not just the ruler's potential enemy but are also his major
asset. Without their hard labor in the fields and bravery on the
battlefield, the state is doomed. To motivate them, coercion will not
suffice. Rather, to make the "bitter and dangerous"
occupations of tilling and fighting attractive, one should turn them
into the exclusive way to material riches and glory. This
understanding stands at the background of Shang Yang's most
celebrated reform: the replacement of Qin's traditional
hereditary aristocratic order with the new system of the ranks of
merit.



The system of 20 (initially fewer) ranks of merit introduced by Shang
Yang was one of the most daring acts of social engineering in human
history. This system became the cornerstone of social life in Qin. The
lowest ranks were distributed for military achievements, particularly
decapitating enemy soldiers, or could be purchased in exchange for
extra grain yields; some of the successful rank-holders could be
incorporated into the military or civilian administration and
thereafter be further promoted up the social ladder. Each rank granted
its holder economic, social, and legal privileges (e.g. redeeming
mutilating punishments by paying a fine). Since the ranks were not
fully inheritable, the system generated considerable social mobility
(Pines 2016b: 17-24; q.v. for further references). The ranks of
merit--i.e., rewards--became the major motivating force for
Qin's subjects, especially on the battlefield. The text
clarifies:



> 
> 
> When rewards are unified, the army has no rivals. . . . What is called
> "unifying rewards" means that benefits, emoluments,
> official position, and rank uniformly derive from military
> [attainments] and that there are no other ways to dispense them.
> Therefore, the knowledgeable and the ignorant, the noble and the base,
> the courageous and cowardly, the worthy and unworthy--all fully
> utilize their innermost wisdom and fully exhaust the power of their
> limbs, going forth to die in the service of their superiors. (*Book
> of Lord Shang* 17.1-2, "Rewards and
> punishments")
> 
> 
> 



In the above passage the ranks of merit and adjacent "benefits,
emoluments, and official positions" are to be distributed
exclusively in exchange for military attainments. Elsewhere the text
suggests that high grain yields should be another avenue to ranks,
although the latter point remained less developed than rewarding
meritorious soldiers (Pines 2021). Differences notwithstanding, one
point remains consistent. The efficiency of the system of ranks of
merit requires its exclusivity, which in turn can be ensured only
through the government's control over social, economic, and
political status of the subjects. The text concludes:



> 
> 
> Those who do not work but eat, who do not fight but attain glory, who
> have no rank but are respected, who have no emolument but are rich,
> who have no office but lead--these are called
> "villains" (*Book of Lord Shang* 18.6,
> "Charting the policies").
> 
> 
> 



Shang Yang is adamant: any group which tries to bypass engagement in
agriculture and warfare--be these merchants who amass riches
without tilling or talkative intellectuals who seek promotion without
contributing to the state economically or militarily--should be
suppressed or at least squeezed out of profits. Nothing--neither
learning, nor commerce, nor even artisanship--should distract the
people from farming and fighting.



Not all aspects of Shang Yang's program were equally successful.
The simplistic emphasis on agriculture only and the recommendation to
suppress commerce was eventually abandoned by Qin policy makers (Pines
2021). Some of the military ideas in the text--e.g., the
depiction of the commanders who are more preoccupied with calculating
the merits of individual soldiers than directing the battle--also
appear naive (Pines 2016c: 123-125). These flaws
notwithstanding, overall, Shang Yang's reforms and the ideas
expressed in the *Book of Lord Shang* should be credited for
turning the state of Qin into arguably the most formidable military
machine in China's long history.


## 4. Ordering the Bureaucracy



To rule and control the people effectively, the government should rely
on an extensive bureaucracy; but this bureaucracy in turn should be
properly staffed and tightly monitored. It is with this regard that
the *fa* thinkers made a lasting contribution to China's
administrative thought and administrative practices. Their strongly
pronounced suspicion of scheming ministers and selfish officials was
conducive to the promulgation of impersonal means of recruitment,
promotion, demotion, and performance control. These means became
indispensable for China's bureaucratic apparatus for millennia
to come (Creel 1974).


### 4.1 Recruitment and Promotion: The *fa* Model of Meritocracy



One of the primary issues that the rulers of the Warring States faced
was that of recruitment into government service. During the
aristocratic Springs-and-Autumns period, the overwhelming majority of
officials were scions of hereditary ministerial lineages; only
exceptionally could outsiders join the government. This situation
changed by the end of the fifth century BCE, as aristocratic lineages
were largely eliminated in internecine struggles and members of lower
nobility--the so-called "men of service,"
*shi* Shi --could advance up the ladder of
officialdom. It was then that the new meritocratic discourse of
"elevating the worthy" (*shang xian*
Shang Xian ) proliferated and upward social mobility became
legitimate (Pines 2013c). Yet who were the "worthy" and
how to determine one's worth was a matter of considerable
uncertainty and confusion.



One model was proposed by Confucians. It was a bottom-up model.
One's worth as a "noble man" was primarily
determined by one's morality; and those who could judge this
morality were one's peers. In practice, it meant that the ruler
should heed the elite opinion and appoint persons who gained renown
for their moral qualities. For the *fa* thinkers, this was a
dangerous delusion. In their eyes, the vagueness of the
"worth" definition was deliberately built into the
Confucian model to open career opportunities for the good-for-nothing
talkers. The *Book of Lord Shang* clarifies:



> 
> 
> What the world calls a "worthy" is one who is defined as
> upright; but those who define him as good and upright are his
> partisans. When you hear his words, you consider him able; when you
> ask his partisans, they approve it. Hence, one is ennobled before one
> has any merits; one is punished before one has committed a crime.
> (*Book of Lord Shang* 25.1, "Attention to law")
> 
> 
> 



The author perceptively identifies the problem of PR campaigns in
which the appointee's ability and worth are determined by his
reputation, which, in turn, is manufactured by his partisans (or a
"clique," *dang* Dang ). The result is
proliferation of fake worthies. This proliferation becomes possible
because the ruler can easily be manipulated and misled by those who
hide their selfishness behind lofty pronouncements. Shen Dao further
warns the ruler that if he decides on promotions and demotions on the
basis of his personal impression, this will cause inflated
expectations or excessive resentment among his servants:



> 
> 
> When the ruler abandons the standard (*fa*) and relies on
> himself to govern, then punishments and rewards, recruitment and
> demotion all arise out of the ruler's heart. If this is the
> case, then even if rewards are appropriate, the expectations are
> insatiable; even if the punishments are appropriate, lenience is
> sought ceaselessly. If the ruler abandons the standard and relies on
> his heart to decide upon the degree [of awards and punishments], then
> identical merits will be rewarded differently, and identical crimes
> will be punished differently. It is from this that resentment arises.
> (Harris 2016: 120)
> 
> 
> 



To avoid mistakes, to screen off false worthies, and to avoid
resentment, the ruler should never rely on his own judgments. Instead,
promotion and demotion should be based on impersonal standards only.
Han Fei clarifies:



> 
> 
> Thus, as for the officials of an enlightened ruler: chief ministers
> and chancellors must rise from among local officials; valiant generals
> must rise from among the ranks. One who has merit should be awarded:
> then ranks and emoluments are bountiful and they are ever more
> encouraging. One who is promoted and ascends to higher positions, his
> official responsibilities increase, and he performs his tasks ever
> more orderly. When ranks and emoluments are great, while official
> responsibilities are well ordered --this is the Way of the [True]
> Monarch. (*Han Feizi* 50.5, "Illustrious
> Teachings")
> 
> 
> 



Han Fei proposes a meritocratic system that would not depend on the
vague notion of "worthiness" but will function according
to objective criteria of merit. Administrative and military officials
will be promoted from the lower ranks of the bureaucracy and the army;
they will be judged according to their performance, and, if
successful, given ever more important offices. While the system is far
from perfect (it does not explain how the people will join the
administrative apparatus in the first place), it is much more
sophisticated than anything proposed in other Warring States-period
texts. It bears clear resemblance to the rules of promotion in such
modern meritocratic systems as the army or academia. And it is the
system most readily associated with the current state of affairs in
the People's Republic of
 China.[2]


### 4.2 Monitoring Officials: Techniques of Rule



The chapter "Defining the standards" of *Han Feizi*
famously criticized Shang Yang for being too focused on *fa*
(meaning in this context the control of society), while paying
insufficient interest to the problems of governing the political
apparatus. Han Fei, by contrast (as well as Shen Buhai, many of whose
ideas Han Fei adopted), paid primary attention to the latter. Han
Fei's observation, "the sage orders the officials, not the
people" (*Han Feizi* 35.4.1) is insightful. No problem
could be dealt with adequately unless the ruler possessed an efficient
and responsive bureaucracy.



Dealing with the bureaucrats posed two problems. First, Han Fei
presumes that officials will normally do whatever possible to cater to
their selfish needs, bringing about dereliction of duty, corruption,
and the resultant weakening of governability. Second, and more
peculiar to *Han Feizi*, the text repeatedly warns that the
real problem with the officials is not just that of corruption and
inefficiency. Rather, powerful officials are bent on subverting the
sovereign's power and even outright usurping the throne. A
prudent ruler should adequately deal with both--indirect and
direct--threats. To do so, he must pay utmost attention to the
"techniques of rule" (*shu* Shu ).



The term *shu* has two aspects. First, it refers to a variety
of bureaucratic devices aimed at monitoring the officials'
performance. For instance, "Technique is bestowing office on the
basis of concrete responsibilities, demanding performance on the basis
of titles, wielding the levers of life and death, and examining the
abilities of the ministers" (*Han Feizi* 43.1.2,
"Defining the standards"). These are reasonable mechanisms
that can be adequately utilized in modern management. Ditto for the
text's insistence that the ruler preserves absolute control over
rewards and punishments. Yet there is a second, and more problematic
aspect of *shu*: it refers to a variety of means aimed at
safeguarding the ruler's power against his scheming underlings.
This underlying concern is well palpable in Han Fei's discussion
of the principle of "performance and titles"
(*xingming* Xing Ming )--one of the crucial elements
in his administrative thought (for the term *xingming* cf.
Makeham 1990-91; Indracollo forthcoming). *Han Feizi*
explains:



> 
> 
> A sovereign who wants to suppress treachery must examine and match
> performance (or the form, *xing* Xing ) and title (or the
> name, *ming* Ming ). Performance and title refer to the
> difference between the proposal and the task. The minister lays out
> his proposal; the ruler assigns him the task according to his
> proposal, and solely on the basis of the task determines [the
> minister's] merit. When the merit matches the task, and the task
> matches the proposal, [the minister] is rewarded; when the merit does
> not match the task and the task does not match the proposal, he is
> penalized. ... Thus, when the clear-sighted sovereign nourishes
> his ministers, the minister should not claim merit by overstepping
> [the duties of] his office, nor should he present the proposal that
> does not match [his task]. One who oversteps his office's
> [duties] dies; one who[se proposal] does not match [the task] is
> punished; then the ministers are unable to form cabals and cliques
> (*Han Feizi* 7.2, "Two levers").
> 
> 
> 



Goldin (2020: 214) compares the notion of "performance and
titles" to the modern call for bids. A minister makes the
proposal on the basis of his official duties; his actual performance
is then matched against his proposal and the result (reward or
punishment) is determined accordingly. Whether or not one accepts the
logic of this management style, it is safe to say that in principle it
is not controversial. However, it is framed above within the context
of the ruler's struggle against ministerial treachery and
against cabals and cliques. This brings us to the more problematic
aspect of Han Fei's "techniques": their clandestine
and tricky nature. Han Fei explains:



> 
> 
> As for techniques of rule, they are hidden in the breast. It is that
> through which you match up all the various ends and from your secret
> place steer the ministers. Therefore, laws (*fa*) are best when
> they are clear, whereas techniques should not be seen. (*Han
> Feizi* 38.8.2, "Objections 3")
> 
> 
> 



The reason behind this secrecy is that the techniques of rule serve
not just to help the ruler perfect the bureaucratic mechanism, but,
more urgently, to safeguard him against closest aides. *Han
Feizi* is adamant in its repeated warnings to the ruler: beware of
everybody; especially of your ministers. For instance, chapter 8,
"Extolling authority" postulates:



> 
> 
> The Yellow Emperor said: "A hundred battles a day are fought
> between the superior and his underlings." The underlings conceal
> their selfish [interests], trying to test their superior; the superior
> employs gauges and measures to restrict the underlings. Hence when
> gauges and measures are established, they are the sovereign's
> treasure; when the cliques and cabals are formed, they are the
> ministers' treasure. If a minister does not murder his ruler,
> this is because the cliques and cabals are not formed yet. (*Han
> Feizi* 8.8)
> 
> 
> 



Amazingly, Han Fei--himself an aspiring minister--concludes
that the ministers are by definition the ruler's mortal enemies.
If they did not carry out the assassination, it is only because they
did not prepare adequately, or, as the text explains elsewhere,
because the ruler was prudent enough to outwit them through the proper
application of the techniques of rule. Han Fei's view echoes
Shen Buhai's assessment that the ruler's true enemies are
not the outsiders, "invaders and bandits," but rather an
insider: a minister, who "by limiting what the ruler sees and
restricting what the ruler hears, seizes his government and
monopolizes his commands, possesses his people and takes his
state" (Creel 1974: 344, translation modified).



This pronounced anti-ministerial mindset of the *fa* thinkers
stands at the backdrop of some of Han Fei's most questionable
recommendations to the ruler, such as "issue confusing
edicts" or "say the opposite of what you mean"
(*Han Feizi* 30.0.0, "Inner Congeries of Explanations,
Part I: The Seven Techniques"). The friction between the
fairness and transparency of *fa* and the trickery and secrecy
of *shu* is most visible here. Song Hongbing (forthcoming A)
suggests that it reflects Han Fei's realization of the dirty
nature of political struggles in which fair and transparent norms of
*fa* are not applicable. Indeed, if we accept Han Fei's
gloomy expectation that almost every political actor is driven purely
by selfish interests, then the politics becomes a perennial war of
survival. This said, sometimes the thinker qualifies his own cynicism
and indicates that through proper utilization of the means of his
disposal the ruler can maintain his rule without going to extremes.
Thus, having compared the ministers to the ruler-devouring tigers, Han
Fei explains: "when the application of laws and the punishments
is reliable, the tigers will be transformed into humans, reverting to
their true state" (*Han Feizi* 8.7; "Extolling
authority").



In the final account, ministers are human beings, and they can serve
the ruler well. All that is needed is to remember that the
ruler-minister relations are based not on devotion and loyalty but on
pure calculation of benefit. Insofar as the ruler relies on techniques
of rule and utilizes the advantages of his positional power (section
5.1 below), in particular his control over rewards and punishments,
the ministers will serve him faithfully. They will do it not because
they are morally committed to the sovereign or the polity, but due to
a simple calculation of personal benefits. This is yet another
manifestation of the advantage of the rule by impartial standards.


## 5. The Ruler



The *fa* thinkers in general and Han Fei in particular are
often condemned as defenders of "monarchic despotism" and
"absolute authoritarianism" (Hsiao 1979: 386, 417).
Whereas this verdict is not unanimous--Angus C. Graham, for
instance, opined that Han Fei's system makes sense only
"if seen from the viewpoint of the bureaucrat rather than the
man at the top" (Graham 1989: 290-292)--it is fairly
widespread. In light of the *fa* thinkers' profound
anti-ministerial stance, it is indeed easy to conclude that they were
fully committed to the ruler alone. And yet, their endorsement of the
ruler is not devoid of deep underlying tension. The *fa*
thinkers are devoted to the ruler as an institution, the sole
guarantor of social and political order, but not necessarily to an
individual sovereign, whose weaknesses they realize well. In *Han
Feizi* in particular, this tension between an abstract and a
concrete ruler attains truly tragic proportions.


### 5.1 The Ruler's Superiority



The principle of monarchism, namely the conviction that peace and
stability are attainable only under a singular omnipotent sovereign,
can be considered the unifying thread of the Warring States-period
political thought (Liu Zehua 2013-14; Pines 2009: 25-107).
Thinkers of various ideological affiliations proposed ethical, ritual,
and cosmological stipulations to monarchic rule. To these debates, the
*fa* thinkers added primarily sociopolitical and administrative
dimensions. In their eyes, the exclusive power of the monarch was the
only way to ensure proper functioning of society and the state. Shen
Dao clarifies:



> 
> 
> In antiquity, the Son of Heaven was established and esteemed not in
> order to benefit the single person. It is said: When All under Heaven
> lacks the single esteemed [person], then there is no way to carry out
> the principles [of orderly rule, *li* Li ]. ... Hence the
> Son of Heaven is established for the sake of All under Heaven, it is
> not that All under Heaven is established for the sake of the Son of
> Heaven. ... Even if the law is bad, it is better than absence of laws;
> therewith the hearts of the people are unified. (Harris 2016: 110)
> 
> 
> 



Shen Dao views the ruler as crucial for the proper functioning of the
political system; he is the real foundation of political order, not a
beneficiary but rather a servant of humankind. He attains these
blessed results by the sheer fact of his existence and not due to
personal morality or intelligence. According to Shen Dao, bad laws are
better than a lawless situation, and we may infer that a bad ruler is
better than anarchy.



The importance of the ruler in *fa* thought derives primarily
from the mere singularity of his position. By being the ultimate locus
of authority, the ruler imposes unity of action upon his officials.
Shen Dao explains: "Doubts bring commotion; doubleness [of the
sources of authority] brings contention, intermingling brings mutual
injury; harm is from sharing, not from singularity" (Harris
2016: 118). This is the rationale for concentrating all imaginable
power in the sovereign's hands.



Aside from providing necessary unity to the political apparatus, the
ruler contributed to the *fa* project in additional ways. As
the story narrated in the first chapter, "Revising the
laws," of the *Book of Lord Shang* clarifies, it was only
through the ruler's endorsement that radical reforms could be
launched against the entrenched opposition of conservative courtiers.
Besides, the ruler, ex officio, represented the common interests of
his subjects (*gong* Gong , recall that the same term
designates a territorial lord). He embodied impartiality; without him,
conflicting selfish interests will tear the polity apart.



This backdrop explains the *fa* thinkers' unwavering
commitment to safeguarding the ruler's authority. Their most
significant theoretical innovation with this regard is the concept of
positional power (*shi* Shi ), which is frequently
associated with Shen Dao, but which matures in *Han Feizi*
(Pines 2020a). The ruler's authority does not derive from his
personal qualities. What matters is the power of his position, which
allows him to command obedience of his subjects. It is essential
therefore that the ruler firmly preserves the right of the final
decision in his hands and never relegates it to the underlings. Shen
Buhai explains: "He who is a singular decision-maker can become
the sovereign of All under Heaven" (Creel 1974: 380, translation
modified). Han Fei warns repeatedly that relegation of one of two
major levers of rule--rewards and punishments--to the
ministers will open the way to ministerial usurpation. And the chapter
"Relying on law" of *Guanzi* further
elaborates:



> 
> 
> Hence there are six things that the clear-sighted monarch maintains:
> to give life, to kill, to enrich, to impoverish, to ennoble, to
> depreciate. These are the six levers that the ruler maintains.
> (*Guanzi* 45; cf. Rickett 1998: 148)
> 
> 
> 



This devotedness to the ruler's power, coupled with the strongly
pronounced anti-ministerial stance, distinguishes the *fa*
thinkers from their rivals. Sometimes, this devotedness appears truly
extreme, as in the above chapter of *Guanzi* which urges the
ruler to punish by death any unauthorized action of a minister, even
if its results were successful, while pardoning failures in cases
where the minister strictly obeyed the ruler's command
(*Guanzi* 45; Rickett 1998: 150). Such recommendations create
an impression of the *fa* tradition as supportive of
authoritarian, even despotic rule. But one should understand the
underlying logic. Think of an army, where preservation of the chain of
command and of the singular authority of every commander over his unit
is far more important than ensuring the best possible commander at the
top. A subordinate officer may very well surpass his commander
intellectually, but for the sake of military discipline, which is
vital for preserving the army as such, it is important that he obey
commands. In a Warring State, where the difference between civilian
and military realms was blurred, the need for unified decision-making
was unanimously accepted (for applying the military simile to the
political realm, see, e.g., *Lushi chunqiu* 17.8
["Zhi yi" Zhi Yi ]). The *fa* thinkers
were not exceptional with this regard, but simply more straightforward
in advocating the absoluteness of the ruler's power.


### 5.2 Entrapped Sovereign?



The *fa* thinkers' image as staunch endorses of autocracy
becomes qualified once we note their unflattering view of real-life
rulers. The *Book of Lord Shang* and *Han Feizi*
repeatedly refer to "contemporary sovereigns"
(*shizhu* Shi Zhu ) as epitome of shortsightedness and
mediocrity. This is not accidental. The *fa*
thinkers--much like their intellectual rivals--realized that
the system of hereditary succession could not normally produce
brilliant leaders. Accordingly, their expectations of the rulers were
low. Take for instance many dozens of historical anecdotes scattered
throughout *Han Feizi*, which repeatedly tell not just about
imprudent rulers who were duped by unscrupulous underlings, but also
about those who dismissed good advice of their aides and brought about
disaster on themselves and their states. These anecdotes problematize,
if not outright subvert the text's habitual sidelining with the
ruler against his ministers. Han Fei is "obliged to integrate
the unavoidable fact of absolute submission to an individual who is
more often than not totally unqualified for the exercise of supreme
command" (Graziani 2015: 162).



How to resolve this quagmire? The *fa* thinkers hesitate.
Sometimes they speak of an ideal of a "sage"
(*sheng* Sheng ) or "clear-sighted"
(*ming* Ming , often translated as
"enlightened") sovereign. In a few of *Han Feizi*
chapters, the thinker apparently recommends to subject the ruler to
"rigorous intellectual self-cultivation" (Lewis,
forthcoming). Overall, however, the idea of personal self-cultivation
as a solution to political problems remains alien to *fa*
texts. An alternative, better attuned to *fa* ideology, is to
rely on perfectly designed political institutions that would
accommodate mediocrities on the throne. This point is explicit in
chapter 40, "Objections to position power," of *Han
Feizi*. Han Fei explains that the system he designs should cater
to the need of average or mediocre (*zhong* Zhong ) rulers,
neither moral paragons, nor monstrous tyrants. This system will attain
good results precisely because it does not expect of the ruler any
extraordinary qualities (Pines 2020a). *Guanzi* further
clarifies:



> 
> 
> The sage ruler relies on laws, not on personal wisdom; on methods and
> not on persuasions; on impartiality and not on selfishness; on the
> great Way and not on trivial matters. Then, he may be at ease and
> All-under-Heaven will be governed well. (*Guanzi* 45,
> "Relying on law"; cf. Ricket 1998: 144)
> 
> 
> 



The text ostensibly speaks of a sage ruler, but the sagacity of this
ruler is manifested in following impartial norms and discarding his
own abilities, as well as the persuaders' talks. Time and again,
the ruler is warned that he should never allow his personal whims,
favoritism, likes and dislikes to influence decision making. Instead
he should inviolably follow laws, methods (*shu* Shu ),
techniques of rule, and other impartial norms. His personality should
have no impact at all on the state's functioning. This is the
bottom line of "being at ease": the ruler simply should
avoid intervention in quotidian government affairs.



The latter point elucidates a major but less frequently noted aspect
of the *fa* views of rulership. The same texts that insist that
the ruler should preserve firmly the right to issue final decisions,
to supervise his officials' performance, to reward and
punish--are equally adamant that he should never interfere in
everyday political matters. This depersonalization of the sovereign
peaks in *Han Feizi*. Time and again the text insists that the
ruler should eschew any expression of personal emotions, cast away
personal desires, avoid manifestations of favoritism, and not trust
his personal abilities. The thinker summarizes:



> 
> 
> The way of a clear-sighted ruler: Let the wise completely exhaust
> their contemplations and rely on them to decide on matters--then
> the ruler is not depleted of wisdom. Let the worthy utilize their
> talents and rely on them and assign task accordingly--then the
> ruler is not depleted of abilities. When there is success, the ruler
> possesses a worthy [name]; when there is failure, the minister bears
> the responsibility. Thus the ruler is not depleted of a [good] name.
> Hence, being unworthy, he is the master of the worthies; being unwise,
> he is the corrector of the wise. The minister works, while the ruler
> possesses the achievements: this is called the foundations of the
> worthy sovereign. (*Han Feizi* 5.1, "The way of the
> sovereign")
> 
> 
> 



This passage is somewhat ironic. Whereas the ruler is referred to as
"clear-sighted," he is also presumed to be potentially
unworthy and unwise. By dispensing with any manifestation of personal
inclinations and abilities, the ruler benefits twice. First (as
discussed in an earlier part of the cited passage), he avoids the
traps of scheming ministers; and second, he is able to manipulate them
and achieve undeserved glory and fame. The latter promise--an
unabashed appeal to the ruler's selfishness--should lure
him into adopting Han Fei's recommendations. Hinting at the
possibility that the sovereign, albeit unworthy and unwise, will
become the teacher and corrector of his worthy subjects, Han Fei again
discloses his ultimately low expectations of the monarch's
morality and wisdom. This qualifies the text's constant
invocations of a "clear-sighted sovereign."



The bottom line is puzzling. The ruler is supposed to be clever enough
to make fateful decisions and monitor his scheming officials; but
simultaneously he is constantly dissuaded from trusting his own
abilities and intervening in political processes. Graham provocatively
concludes that the ruler in Han Fei's system "has no
functions which could not be performed by an elementary computer.
... Might one even say than in Han Fei's system it is
ministers who do the ruling?" (Graham 1989: 291). Indeed, there
are a few chapters in which Han Fei seems to put his hopes on worthy
ministers (Pines 2013b), but these chapters are contradicted by
others, which define the ministers as the ruler's worst foes.
The ruler remains alone in his woes.



This paradox of an entrapped sovereign, who enjoys God-like
omnipotence, but who is required to refrain from any activism in order
to preserve this omnipotence may reflect Han Fei's understanding
of the perennial weakness of the system in which a
single--potentially inept--individual plays the superhuman
role. That this sober understanding came from a thinker dubbed
"the most sophisticated theoretician of autocracy" (Wang
and Chang 1986:12) deserves utmost attention.


## 6. Assault on Culture and Learning



In the twentieth century, not a few scholars dubbed the *fa*
thinkers "totalitarians" (e.g., Creel 1953: 135-158;
Rubin 1976: 55-88; Fu Zhengyuan 1996; for the criticism of this
designation, see Schiele, forthcoming). Some of the aspects of the
*fa* program--a powerful state that overwhelms society,
rigid control over the populace and the administrative apparatus,
harsh laws, and the like--seem to lend support to this equation.
Yet when we move to the realm of thought control--a sine qua non
for a true totalitarian polity--the results are somewhat
equivocal. Although Shang Yang and Han Fei have much to say on matters
of culture and learning, their message is predominantly negative: they
eagerly expose the fallacies of their opponents' views, but do
not necessarily provide an ideological alternative of their own.



Shang Yang is particularly notorious for his comprehensive assault on
traditional culture and on moral values. The *Book of Lord
Shang* abounds with controversial and highly provocative
statements like this one:



> 
> 
> *Poems*, *Documents*, rites, music, goodness,
> self-cultivation, benevolence, uprightness, argumentativeness,
> cleverness: when the state has these ten, superiors cannot induce [the
> people] to [engage in] defense and fighting. If the state is ruled
> according to these ten, then if the enemy arrives it will surely be
> dismembered, and if the enemy does not arrive, the state will surely
> be impoverished. (*Book of Lord Shang* 3.5, "Agriculture
> and warfare")
> 
> 
> 



This and similar pronouncements, as well as the text's derisive
language (it often dubs moral values as "parasites" or
"lice" [*shi* Shi ]), explain why Shang Yang
gained notoriety in the eyes of imperial literati, as well as many
modern scholars, as an enemy of morality. Yet this conclusion should
be qualified. The "alienating rhetoric," an example of
which is cited above, is concentrated only in a few chapters of the
*Book of Lord Shang*; most other display more accommodative
views toward traditional moral values; some even promise that
"the sage ruler" would be able to "implement
benevolence and righteousness in All under Heaven" (*Book of
Lord Shang* 13.6, "Making orders strict"; see also
Pines 2012). It seems that the text assaults not morality as such but
rather moralizing discourse. It is this discourse--or more
precisely its bearers, the peripatetic "men of service"
who seek employment at the rulers' courts--which arouse
Shang Yang's indignation.



Shang Yang deplores traveling intellectuals because they damage the
foundations of his sociopolitical model. By gaining official positions
and emoluments outside the carefully designed system of ranks of
merit, they dilute the system's exclusivity. Shang Yang is less
concerned with the content of their doctrines; what matters to him is
that promotion of talkative intellectuals will cause the people engage
in hollow talk and needless learning and "become remiss in
agriculture and warfare" (*Book of Lord Shang* 3.5,
"Agriculture and warfare"). Intellectuals, furthermore,
are difficult to control, and their empty talks distract the ruler
from commitment to war. Thus, learning is harmful both economically
and politically.



When the *Book of Lord Shang* speaks of "teaching"
or "indoctrination" (*jiao* Jiao ), it refers
not to imposition of a new set of values, but rather to the
internalization of the government's regulations. Once the people
understand how the system works, they will comply with the
government's requirements without the need in coercion but
rather because of pure self-interest. The text clarifies:



> 
> 
> What is called "unification of teaching" is that ...
> fathers and elder brothers, minor brothers, acquaintances, relatives
> by marriage, and colleagues all say: "What we should be devoted
> to is just war and that is all." ... The people's
> desire for riches and nobility stops only when their coffin is sealed.
> And [entering] the gates of riches and nobility must be through
> military [service]. Therefore, when they hear about war, the people
> congratulate each other; whenever they move or rest, drink or eat,
> they sing and chant only about war. (*Book of Lord Shang* 17.4,
> "Rewards and punishments")
> 
> 
> 



Teaching the people to "sing and chant only about war"
could easily refer to military indoctrination, such as we encounter in
other countries that employed mass armies. Yet the *Book of Lord
Shang* never resorts to adoration of martial spirit,
dehumanization of the enemy, identifying martiality with masculinity,
and similar devices employed in militaristic education elsewhere.
Rather, for Shang Yang and other contributors to "his"
book, "teaching" means simply the people's
internalization of the fact that the only way to satisfy their desires
for riches and glory is to excel in war. "Teaching" is not
about brainwashing; it is just about self-interested compliance with
the government's policies.



Han Fei's views of traditional culture and of learning echo
Shang Yang's, but he is even more vehement in his dislike of
traveling scholars who rise up the sociopolitical ladder by selling
their ideas to the rulers and to high ministers. Han Fei particularly
detests the moralizers--followers of Confucius and Mozi--who
mislead the rulers with their arguments. He mercilessly exposes the
manipulativeness of their discourse, their self-serving definitions of
"worth" and "intelligence," their resort to
historical examples which could be covertly subversive of political
power. Yet the solution is not to devise an alternative discourse but
rather to subjugate intellectual activity to the state's
interests:



> 
> 
> Now, when the ruler listens to [a certain] teaching, if he approves of
> its doctrine, he should promulgate it among the officials and employ
> its adherents; if he disapproves of its doctrine, he should dismiss
> its adherents and cut it off. (*Han Feizi* 50.4,
> "Illustrious teachings")
> 
> 
> 



Han Fei does not deny in principle that some of the rival doctrines
may benefit the state; he just denies their proponents the right to
develop and elaborate their views independently of the state. He
leaves his rivals no illusions: the intellectuals can pursue their
ideas only within the state-ordained system of power, otherwise their
doctrines will be "cut off." The text concludes:



> 
> 
> Thus, in the state of a clear-sighted spvereign there are no texts
> written on bamboo strips, but the law is the teaching; there are no
> "discourses" of the former kings, but officials are the
> teachers; there is no private wielding of swords, but beheading
> [enemies] is valor. (*Han Feizi* 49.13, "Five
> vermin")
> 
> 
> 



Han Fei's suggestion to eliminate the "texts written on
bamboo strips" and turn officials into teachers was implemented
by his fellow student and nemesis, Li Si, soon after the imperial
unification of 221 BCE. In 213 BCE, after heated court debates, Li Si
launched a comprehensive assault on "private learning,"
which he identified as intellectually divisive and politically
subversive. He then suggested eliminating copies of the canonical
books of *Poems* and *Documents*, as well as
*Discourses of the Hundred Schools* (for which see Petersen
1995) from private collections, leaving copies only in the possession
of the court erudites (*boshi* Bo Shi ). Li Si
concluded his proposal by echoing Han Fei's views: "And
those who want to study laws and ordinances, let them take an official
as a teacher!" (*Shiji* 87: 2546; Watson 1993: 185).



Li Si's assault on private learning is often misinterpreted as
the victory of "Legalist" over "Confucian"
ideology, but this is wrong. Confucianism as such was not targeted;
actually, it prospered among the court erudites (Kern 2000:
188-191). What mattered to Li Si--as to Han Fei--was
not doctrinal unity as such, but the imposition of the state control
over intellectual life, like over other spheres of social activity.
Intellectuals were not persecuted because of the content of their
ideas; but they were required either to enter government service or
quit their pursuits. Yet Li Si's biblioclasm backfired. It
caused not only considerable resentment in the short term, but, more
ominously, brought about immense dislike of Qin--and of the
*fa* tradition in general--among the overwhelming majority
of the literati throughout the imperial period and beyond.


## 7. Epilogue: The *fa* Tradition in Chinese History and in Modern Research



The *fa* tradition experienced odd destiny in imperial China.
On the one hand, many of its tenets--e.g., the usage of objective
and quantifiable standards in assessing the officials'
performance--were duly utilized by the empire's leaders
(cf. Korolkov forthcoming and Creel 1974: 233-293). On the other
hand, some of the *fa* thinkers' basic recommendations
proved untenable for the unified empire. For instance, the
discontinuation of universal military service in the Han dynasty
(Lewis 2000) caused gradual atrophy of the system of ranks of merit
advocated by Shang Yang, turning the crux of his social engineering
program irrelevant to the imperial-era statesmen (Pines 2016b:
29-31). Even more consequentially, the emergence of powerful
local elites early in the Han dynasty eroded another pillar of
*fa* thought, viz. the insistence on the state as the sole
provider of material and social benefits. As the political and
intellectual power of these elites increased, more and more ideas of
the *fa* thinkers were sidelined. Such prominent tenets of
*fa* thought as evolutionary view of history, the dismissive
attitude toward self-cultivation, the derision of moralizing
discourse, the denigration of independent intellectuals and the like,
had largely disappeared from the imperial-era political texts.



When the Imperial Counsellor Sang Hongyang Sang Hong Yang 
(152-80 BCE) defended Shang Yang, Shen Buhai, and Han Fei during
the Salt and Iron Debates of 81 BCE, this was the last major occasion
in imperial China's history that a leading statesman had openly
identified himself with these thinkers and proudly positioned himself
as their heir (*Yantielun*, chapters 7 and 56; see also
Polnarov 2018). Thenceforth, manifold supporters of "a rich
state and a strong army" policy would usually distance
themselves from Shang Yang or Han Fei, even if admiring their deeds.
The image of the *fa* thinkers was too tarnished to merit open
identification. These thinkers, were viewed, following Sima Tan, as
"strict and having little kindness" (*Shiji* 130:
3289), as advocates of cruel laws and merciless punishments, as
proponents of the policies that were diametrically opposite to the
cherished "educational transformation" (*jiaohua*
Jiao Hua ). One of the imperial China's most brilliant
intellectuals, Su Shi Su Shi  (appellative Dongpo
Dong Po , 1036-1101) remarked, derisively: "from
the Han onward, scholars have been ashamed to speak about Shang Yang
and Sang Hongyang" (*Dongpo quanji* 105:14).This verdict
grasps well the dominant attitude toward the *fa* tradition in
imperial China. It was only on the eve of the collapse of the Qing
dynasty and of the imperial order itself, when, amid massive
reevaluation of the past, scholars starting paying attention to this
long-sidelined tradition (Song, forthcoming B).



Since the beginning of the twentieth century, we witness a robust
interest in the *fa* texts, which attracted scholars because
their ideas resonated with aspects of modern Western thought, be it
the evolutionary view of history or the idea of *fazhi*, viewed
by many as compatible withthe Western "rule of law." Yet
the twentieth-century rediscovery remained somewhat abortive due to
the lingering political dislike of the authoritarian aspects of the
*fa* tradition, as well as due to mere scholarly inertia. Even
the odd outburst of adoration of *fa* ideology during the
Maoist campaign "Reappraise the *fa* thinkers, criticize
Confucians" Ping Fa Pi Ru  (1973-1975 )
did not result in major breakthroughs (Li Yu-ning 1977; Chen 2019).
Once the campaign ended, the interest in the *fa* tradition in
mainland China receded anew, whereas elsewhere the bizarre endorsement
of *fa* thinkers by Maoist radicals had actually discouraged
in-depth engagement with their texts (Pines, forthcoming C).



This legacy of lackluster interest in *fa* thought is most
readily recognizable in studies of "Chinese philosophy" in
the West. Even a brief survey of major Western introductory-level
studies of Chinese philosophy through the twentieth century and into
the first decade of the twenty-first suffices to demonstrate the
ongoing sidelining of the *fa* tradition. In these studies, the
*fa* texts usually merit just between five to ten percent of
total space dedicated to China's preimperial thinkers. Besides,
until the second decade of the twenty-first century, the *fa*
thinkers merited little if any attention in major Anglophone scholarly
journals that deal with Chinese philosophy, such as *Dao*,
*The Journal of Chinese Philosophy*, and *Philosophy East
and West*.



Since the second decade of the twenty-first century one can note a
clear change. This decade witnessed a translation cum study of the
*Shenzi Fragments* (Harris 2016); two translations cum study of
the *Book of Lord Shang* (Vogelsang 2017; Pines 2017);
publication of the *Dao Companion to the Philosophy of Han Fei*
(Goldin 2013); and publication of more relevant articles than during
the previous half a century. This trend seems to accelerate further
(see, e.g. Jiang 2021; Pines, forthcoming A). The increasing interest
in the *fa* tradition is paralleled in China, where the topic
had been largely de-politicized (as for 2022), and where a scholarly
society for studies of *fajia* was formed in 2015. Overall,
these new developments are conducive for in-depth engagement with the
*fa* tradition.