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The Grand Councillor
By David Arthur Walters
Last edited: Thursday, June 14, 2012
Posted: Thursday, June 14, 2012

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The Grand Councillor of China

Grand Councillor Li Ssu (Li Si) was the prime minister who rationalized the power of the throne for Ch’in Shih Huang Ti, First Sovereign Emperor of China. Indeed, Prime Minister Li Ssu, a Legalist scholar and statesman, was the primary means by which the Taoist-leaning Emperor reputedly got everything done by doing nothing himself.
Li Ssu developed the ideas of the founder of the Legalist school, Wei Yang, entitled ‘the Lord of Shang’ because of a fief he was entitled to, whose notions about the Way of the Emperors and Kings constituted the ideological core of the centralist administrative system of the small but powerful state of Ch’in, a century before Ch’in Shih Huang Ti, formerly Ch’in King Chao Cheng, managed to impose his imperial order on the Warring States. The breakdown of the traditionally feudal order had found every lord vying for power during the Warring States Period, wherefore a new administrative system exercised by a sole central power was sorely needed to save the country from sheer chaos. Absolute imperialism suited the occasion for a brief spell.

It was Lord Shang’s influence a century before that had prepared the state of Ch’in, from which the word ‘China’ was coined, to lead the way. Ironically, Lord Shang was a traitor not only to his home state of Wei, against which he personally led a war for Ch’in, but to his adopted state of Ch’in: one legend has his body torn to pieces by chariots after he was defeated in battle; another says he was the victim of his own severe laws, in particular his mutual denunciation mandate, that everyone must inform on wrongdoers, causing his hiding place to be exposed by an innkeeper so that he could be duly dismembered in the expiation ceremony.

The Emperor (Ti) must square the circle: He must walk the High Way of Heaven (Tian) while reigning on Earth or else be deposed. The High God (Shang Ti) may create the universe at will, but no law requires him to do so: he may arbitrarily will it into existence; it then behooves everyone to abide by that will, which is the supreme law, or fall out of grace with their maker and be destroyed. The essential role of an emperor or Son of Heaven is simply to be emperor, to be known as emperor, to serve as a central focus, and to make sure that the people are unified by common standards from that perspective. Now the Legalist sovereign deploys his ministers while he himself stays behind the scenes, where he may employ devious devices to manipulate affairs, keeping whatever he does do secret so that no one may predict what he might do. Yet his office and not he is presumably the authority; he does not advertise his personal presence because the Law is the standard. That is, the Law is the common ruler by which moral conduct is measured, just as common weights and measures are established for the economy. Still he is known as the dominant arbiter whose doom is the last word. He delegates specific tasks to his ministers, and judges their performance, handing out rewards and punishments.

That is not to say that Shih Huang Ti was bound by the Legalist philosophy; in fact, if the legends are reliable, he deviated from it considerably, touring the empire from palace to palace, immersing himself in practical affairs to such a daily extent that we might call him a hands-on manager if not a control freak. After all, the sovereign is the uncommanded commander, the font of law. He is ultimately constrained by no authority but his own except that of the High God or Heaven, whose sometimes irregular will and way is impossible to divine solely from the regular movement of the heavenly bodies, and with whom or which he would be in harmony or else there would be hell on Earth, i.e. disasters natural or unnatural or which he would have to pay with the throne.

Suffice it to say that the First Sovereign Emperor and not Prime Minister Li Ssu ruled the empire in theory. Li Ssu was a native of Ch'u. Li Ssu was from humble circumstances, yet he had a mind to get ahead in life, and he believed there was scant future in serving the King of Ch'u. He managed to associate himself with King Chao Cheng of Ch'in around 247 B.C., a year or two after the thirteen-year old boy-king took the throne, which he would hold for twenty-seven years prior to becoming Shih Huang Ti, the First Sovereign Emperor of all China for another eleven years.

Chinese historians are famous for amply illustrating their narratives with anecdotes. According to the Shih Chi (Historical Records) of the Grand Historian and Astrologer, Ssu-ma (145-86 B.C), when Li Ssu was a petty district clerk in Ch'u, he observed that the rats eating filth in the toilet room were afraid of men and dogs; but the rats living in the side-galleries ate wholesome grain from the granary and were not afraid of dogs or men; whereupon Li Ssu remarked, "A man's ability or non-ability is similar to these rats. It merely depends upon where he places himself."

Therefore Li Ssu took up the study of high politics, particularly the study of authority (shih), law (fa) and administrative method (shu) favored by the School of Law. The primary affection of the Legalists was for authoritarian government in the interest of ruler and state, in contradistinction to government in the people's interest according to the principles of humanity espoused by various Confucians, Taoists and Mohists. Wherefore the state took precedence and individuals in themselves had no civil rights, although they could rise in government according to their merits. The Legalist merit system is based on the principle of the unification of rewards; once the nature of rewards is fully understood, they will no longer be necessary since everyone will do the right thing without them. We have this from the Book of Lord Shang:

“The way in which a sage administers a state is by unifying rewards, unifying punishments, and unifying education. The effect of unifying rewards is that the army will have no equal; the effect of unifying punishments is that orders will be carried out; the effect of unifying education is that inferiors will obey superiors. Now if one understands rewards, there should be no expense; if one understands punishments, there should be no death penalty; if one understands education, there should be no changes, and so people would know the business of the people and there would be no divergent customs. The climax in the understanding of rewards is to bring about a condition of having no rewards; the climax in the understanding of punishments is to bring about a condition of having no punishments; the climax in the understanding of education is to bring about a condition of having no education. What I mean by the unifying of rewards is that profits and emoluments, office and rank, should be determined exclusively by military merit, and that there should not be different reasons for distributing them. For thus the intelligent and the stupid, the noble and the humble, the brave and the timorous, the virtuous and the worthless, will all apply to the full whatever knowledge they may have in their breasts, exert to the uttermost whatever strength they may have in their limbs, and will be at the service of their ruler even to death; and the outstanding heroes, the virtuous and the good, of the whole empire will follow him, like flowing water, with the result that the army will have no equal, and commands will be carried out throughout the whole empire….”

As early as the seventh century B.C., impersonal law was taking precedence over ritual morality as the feudal system crumbled and power became more concentrated in the hands of absolute monarchs. A reactionary Confucius (BCE 551-479) complained that laws were being written on tripods (three-legged ceremonial cauldrons) while the feudal rules of moral propriety, which specified that each person should keep his place according to his relations, were being abandoned:
"When those rules are abandoned, and tripods with the penal laws on them are cast instead, the people will study the tripods. How will they then honor the men of rank, and what will the nobles do? When there is no distinction of noble and mean, how can a state continue to exist?"

One of Li Ssu's fellow law students was Han Fei, a prince of Han whose Legalist essays were greatly admired by the rising King of Ch'in. Han Fei had abandoned his Confucian studies and taken up Legalism because it was practical and germane at the time—the end of the 'Warring States' period. His advice was not appreciated by the Han ruler—Han Fei's speech impediment may have detracted from his presentation. Han Fei resorted to writing his ideas down; to this day they are an invaluable aid to the understanding of the Legalist doctrine expounded not only by him but by his schoolmate Li Ssu. They are an aid as well to those of our contemporaries who want to succeed in life and who know history is an indispensable lesson to that end.

The Legalist doctrine of Han Fei and Li Ssu is in marked contrast to that of their mutual Confucian teacher, Hsun Tzu, who has been mistakenly identified as the father of Legalism. His mainly Confucian teaching is directly opposite to the gist of the Legalist doctrine, yet Hsun Tzu did diverge from Confucius in a few respects, especially in his belief that men are originally evil. Still, he remained a staunch Confucian in his view that men can be bent straight and true not by reward and punishment but by benevolence, rituals and moral education; in fine, by “virtue,” which the legalists associated with the Six Parasites that plague good government. The Book of Lord Shang identifies the six parasitical pairs:

“The six parasites are: rites and music, odes and history, moral culture and virtue, filial piety and brotherly love, sincerity and faith, chastity and integrity, benevolence and righteousness, criticism of the army and being ashamed of fighting. If there are these twelve things, the ruler is unable to make people farm and fight, and then the state will be so poor that it will be dismembered. If these twelve things come together, then it may be said that the prince's administration is not stronger than his ministers and that the administration of his officials is not stronger than his people. This is said to be a condition where the six parasites are stronger than the government. When these twelve gain an attachment, then dismemberment ensues. Therefore to make a country prosperous, these twelve things should not be practiced; then the state will have much strength, and no one in the empire will be able to invade it.”

The Six Parasites are poisonous, cancerous; merit selection is the antidote:
“If the state confers office and gives rank according to merit, it may be said to be planning with complete wisdom, and fighting with complete courage. Such a country will certainly have no equal. If a state confers office and gives rank according to merit, then government measures will be simple and words will be few. This may be said to be abolishing laws by means of the law and abolishing words by means of words. But if a state confers office and gives rank according to the six parasites, then government measures will be complicated and words will arise. This may be said to be bringing about laws by means of the law and causing volubility by means of words. Then the prince will devote himself to talking; officials will be distracted with ruling the wicked; wicked officials will gain their own way, and those who have merit will retire more daily. This may be said to be failure.”

In any case, Li Ssu revered his conservative Confucian teacher; he respected him as if he were his father. When Li Ssu became powerful, he offered the venerable sage a nominal post in Ch'in; but Hsun Tzu, by then in his nineties, demurred. No doubt the imperialist proceedings and lack of virtue of the small but enormously powerful state of Ch'in would have been distasteful to him anyway.
"Lead the people by magnifying the sound of virtue,” the reactionary Hsun Tzu had expounded. “Guide them by making clear ritual principles, love them with the utmost loyalty and good faith, give them a place in the government by honoring the worthy and employing the able, and elevate them in rank by bestowing titles and rewards. Demand labor of them only at the proper season, lighten their burdens, unify them in harmony, nourish them and care for them as you would little children. Then, when the commands of government have been fixed and the customs of the people unified, if there should be those who depart from the customary ways and refuse to obey their superiors, the common people will as one man turn upon them with hatred, and regard them with loathing, like an evil force that must be exorcised: Then and only then should you think of applying penalties.”

Moreover, Hsun Tzu believed power must be tempered by justice. Wars should only be fought to end violence, not for profit. Good people base their conduct on morality, while depraved people are motivated by profit alone: Confucius considered those profits mere passing clouds while he rested in the pillow of the crook of his arm after eating his meager dinner of rice and water. Again, Hsun Tzu believed, contrary to Confucius' opinion, men are originally evil; and we can hardly blame him given the warring circumstances of his time. But he vainly thought that people can be trained to be good; to that end they should study a limited curriculum, namely, the Classics, including the ones Li Ssu eventually had burned.

Li Ssu was following Legalist anti-cultural theory when he orchestrated the outrageous Burning of the Books. Professor J. J. L. Duyvendak’s 1928 study, The Book of Lord Shang, mentions a tradition recorded by Han Fei, that Lord Shang taught his protector Duke Hsiao to burn the Odes and History. “In a state of an intelligent ruler,” Han Fei commented, “there is no literature of books and bamboo tablets, but the law is the only doctrine; there are no sayings of former Kings, but the officials are the only models.” Duyvendak was enthralled by that statement when he remembered, from his reading of Ssu-ma’s historical accounts, that Shih Huang Ti had read and appreciated those very words, and had exclaimed, “Oh, could I only meet this man; with him I could even go to death with regret!” Duyvendak believed that “This leaves no doubt but that it was the anti-cultural teaching of the School of Law, which had prepared the mind of Ch’in Shih Huang Ti for the deed by which he incurred the hatred of all later generations: the Burning of the Books in 213. Li Ssu, in advising him to this action, merely put into practice what the Law School had been teaching for decades, and he found a willing ear in his master, who, no less than the mighty Corsican to whom he is often compared, detested “tous ces ideologues.”

Nevertheless, we note Hsun Tzu's Confucian link to Legalism: he too advocated an authoritarian response to the troubled times, but by means of education: the central government would have a state monopoly on education. When that monopoly was perfected, there would be no further dialectic or argument due to a lack of respect for the ruler's 'shih' (power, authority). Hsun Tzu's ruler would naturally be a model of Confucian virtue, which was poison in the mouth of a Legalist. Hence Hsun Tzu despised the military methods and the reward and punishment system of the Ch'in state as administered by his former pupil Li Ssu, and advocated Confucian virtue. His school of thought was eventually represented by the "bookish" Confucian bureaucrats of the early Han Dynasty, which succeeded the Ch'in Dynasty: they took part in reconstructing the cultural tradition the Legalist approach of Li Ssu and Han Fei had worked so hard to destroy; during the reconstruction, more records were lost than were burned by their predecessors, and the beloved old literature was edited into the authoritative canon handed down to us - in other words, just how Classical the Chinese Classics are is a scholarly bone of contention.
The Legalism of Han Fei and Li Ssu was an altogether different approach to government than the traditional method taught by their Confucian teacher. Legalism is a totalitarian form of positive law. Although it is "positive" in the sense it is written down for all to see and obey, it is not to be confused with the positive law of a mixed government, such as a constitutional monarchy or a democratic republic, for Legalism ultimately espouses the authoritarian methods of absolute dictatorship.
The Legalism Li Ssu embraced did not cater to past precedent but to the needs of the present, particularly the need of the sovereign to rule absolutely, without argument. It rejected the Confucian and Mohist worship and citation of the legendary sage-emperors Yao and Shun; after all, what really happened two thousand years ago simply cannot be known, and is irrelevant to present circumstances. Han Fei wrote, "To be sure of anything without corroborating evidence is stupidity, and to base one's argument on anything about which one cannot be sure is perjury. Therefore those who openly base their argument on the authority of ancient kings and who are dogmatically certain of Yao and Shun are men of either stupidity or perjury."

The Book of Lord Shang elaborates the positive approach: “The rulers of the present day all desire to govern the people, but their way of helping them is disorderly, not because they take pleasure in disorder, but because they rest on antiquity and do not watch for the needs of the times; that is, the ruler models himself on antiquity, and as a result, is hampered by it; subordinates follow the present and do not change with the times, and when the changes in the customs of the world are not understood, and the conditions for governing the people are not examined, then the multiplication of rewards only leads to punishments, and the lightening of punishments only eliminates rewards. Indeed, the ruler institutes punishments, but the people do not obey; his rewards are exhausted, but crimes continue to increase; for the people in their relation to the ruler, think first of punishments and only afterwards of rewards. The sage's way, therefore, of organizing a country is not to imitate antiquity, nor to follow the present, but to govern in accordance with the needs of the times, and to make laws which take into account customs. For laws, which are established without examining people's conditions, do not succeed, but a government which is enacted fittingly for the times, does not offend. Therefore, the government of the sage-kings examined attentively the people's occupations and concentrated their attention on unifying them and on nothing else.”

Legalism denounces moral platitudes and vain talk and demands concrete results. Legalism demands precisely formulated, officially promulgated, and rigorously enforced laws. Han Fei said “the law is that which is enacted into the statute books, kept in government offices, and proclaimed to the people... Therefore for law there is nothing better than publicity." On the other hand, "secrecy" is the prescription for "statecraft", for the internal affairs of state, not only for its tactical value in breaking up intrigues, but also to enhance the cult of flawless Royal Power; 'shih' is the cornerstone of Legalism, prior to 'fa' (law) and 'shu' (statecraft).
Ample rewards and severe punishments are the means of enforcement to be directly addressed to the "two handles" of the humans to be manipulated: pleasure and pain. The prime objective: to prevent disobedience to the ruler's will and interest; the ruler is an uncommanded commander whose law is beyond dialectical criticism. "To execute is called punishment and to offer congratulations or rewards is called kindness. Ministers are afraid of execution and punishment but look upon congratulations and rewards as advantages," propounded Han Fei.

Morality is irrelevant: people do not steal food because they are evil but because they are hungry; a coffin carpenter does not build coffins to be good to people but because he wants to profit from his work. The ruler's objective is not to make people good but to restrain them from taking action contrary to the positive law of sovereign authority.
Institutions should not be judged by their morality but by their adaptation to change and to the needs of the time. Han Fei writes: "People are submissive to power and few of them can be influenced by doctrines of righteousness. Confucius was a sage known throughout the empire. He cultivated his own character and elucidated his doctrines and traveled extensively within the four seas (China). And yet only seventy people became his devoted pupils. The reason is that few people value humanity and it is difficult to practice righteousness." We note that the number of disciples known is only half of the ever popular number (seventy) stated.
The ruler must realize that his interests are contrary to those of his subordinates and his own family; he should have no confidence in them: he must hold the supreme, absolute power in his hands alone. If he has confidence in someone, that person will oppose him or will be used by others to subvert his rule. But if he selects his ministers well, on merit alone, if he retains and rewards those who do well, while getting rid of hypocrites and severely punishing mistakes, his government will succeed, even if he is an average or immoral man: society cannot afford to wait around for a hundred or a thousand years for a sage-king or morally superior man to appear on the scene, hence positive law must be the sole guide.
Of primary importance is equality under law, the equal application of law regardless of the status of the person judged. "If rewards are bestowed according to mere reputation, and punishments are inflicted according to mere defamation, the men who love rewards and hate punishments will discard public law and practice self-seeking tricks and associate for rebellious purposes..." wrote Han Fei.
Of course the ruler will craftily use statecraft to foil plots and intrigues. Rising above all differences to the Equality or "emptiness" of Perfection, he is the inscrutable Power behind the scenes, the Natural Law uniting Heaven and Earth. He is the Pole Star to whom all must turn. He is the Sun, the Central Inspector on tour. He allows everything to fall into place, the assumers to show their hands, the hypocrites to display the disjunction between word and deed, and then....
Mysticism may seem unfitting to the Legalist context of positive law and amoral social science, but we must not be fooled by logical appearances of propriety. Students of Taoism will certainly want to study Han Fei's comments on the Tao in the context of the relation between the First Sovereign Emperor and Prime Minister Li Ssu to see the practical, Legalist application of the occult teaching. Han Fei was fond of Taoism and incorporated it into his Legalist doctrine:
"By virtue of resting empty and reposed, (the ruler) waits for the course of nature to enforce itself so that all names will be defined of themselves and all affairs will be settled of themselves. Himself empty, he knows the essence of fullness; himself reposed, he becomes the corrector of motion. Who utters a word creates himself a name; who has an affair creates himself a form. Compare forms and names and see if they are identical. The ruler will find nothing to regret, since everything is reduced to its reality.”

Last, but certainly not least, the economy: the economic strength of the Legalist state depends on its military might. The ruler will expect military prowess unto death, and encourage productive enterprises such as farming, discouraging unproductive occupations such as that plied by the hordes of scholars who do little more than multiply words, sowing the seeds of dissension so often disguised as benevolent humanism. Giving to the poor what has been earned by the rich is both unfair and unwise. Behavior is based on a competitive principle. The problem of who shall enforce the law is resolved by discouraging large families from living together, and inducing people to control one another. People were divided into small groups whose members control each other but whose interests and identity as a group compete with similar interests of other groups; it is to the advantage of members of a group to inform on one another and for groups to denounce their competitors. There are substantial rewards for indicting others for crimes, and punishments are harsh. An individual may have property in land, breaking up the old ching or feudal holding system, and is moved to compete with others because he shall prosper according to his merits relative to the others; his profits are not only in terms of material goods but in terms of status awarded according to his meritorious deeds. The laws Lord Shang had established in Ch’in had good results: within ten years; people who once opposed the new mandates came to praise them; Legalists said people should be severely punished for talking about them one way or the other. Good order prevailed, crime was greatly reduced, goods were plentiful, and warriors were brave in battle but modest in private arguments, and so on.

Now, then, after Li Ssu had completed his studies of  Legalist doctrines, he decided to go to the state of Ch'in to take advantage of the ongoing wars which he perceived as a golden opportunity for politically minded commoners to rise in their careers; while losers, of course, remain passive in mean circumstances. Before departing for Ch'in, he remarked that the King of Ch'in "desires to swallow up the world and to rule with the title of Emperor... One who, abiding in a mean position, decides to remain passive, is like a bird or deer that will merely look at meat... But one who possesses a human countenance can act vigorously. Hence there is no greater shame than meanness of position, nor deeper grief than poverty. To remain long in a mean position or in a condition of privation, criticizing the world, despising profit, and committing oneself to the principle of Non-activity (principle of Taoism) - such is not the nature of a gentleman. Therefore I intend to go westward to give counsel to the King of Ch'in." (Shih Chi)

And the proactive counselor did just that. Li Ssu obtained a position at Ch'in Councillor Lu Pu Wei's office, and he soon had a chance to speak to the King about the golden opportunity to exercise power over the entire country: "The small man," said Li Ssu to the King, "is one who throws away his opportunities, whereas great deeds are accomplished through utilizing the mistakes (of others), and inflexibly following them up... The feudal lords at the present time are paying allegiance to Ch'in, as if they were it commanderies and prefectures. With Ch'in's might and the King's great ability, (the conquest of the other states would be) like sweeping (the dust) from the top of a kitchen stove. (Ch'in's power) is sufficient to obliterate the feudal lords, bring to reality the imperial heritage, and make of the world a single unity. This is the one time of ten thousand generations."
King Cheng, pleased with this advice, made Li Ssu Senior Scribe and "listened to his plans, and had him secretly commission plotters, bearing gold and precious stones, to travel about and advise the feudal lords." Those who took heed were rewarded; those who did not were "stabbed with sharp swords."
Li Ssu became Alien Minister. Shortly thereafter, a plot by an alien in Ch'in was exposed: upon the urging of his ministers, the King order aliens including Li Ssu expelled from Ch'in. As the former Alien Minister approached the border to leave the state, he sent back a memorial to the King, setting forth an extended argument in favor of employing aliens. In short, since the state of Ch'in owed its prosperity to sound advice given by alien advisors to former Ch'in rulers, as well as to the importation of the good things in life such as treasure, music, dancing, and beautiful women, it would be extremely unwise to expel aliens from the country.
"Now there are many articles not produced in Ch'in and yet valuable, and numerous gentlemen who have not been reared in Ch'in and are yet desirous of being loyal. If at present you expel aliens so as to give increment to opposing states, and decrease your people so as to make addition to the enemy, then you will find yourself depopulated at home and will have established (sowers of) enmity against you among the feudal lords abroad. Should you then wish to have the country without danger, you could not obtain it."
The King rescinded the order to expel aliens, and Li Ssu was recalled to office. Another alien, Li Ssu's old schoolmate Han Fei, was forced to commit suicide or was poisoned by an apparently jealous Li Ssu - the very sort of thing Han Fei had expressly warned rulers about
No doubt the ancient School of Five Elements powered by Yin and Yang would be amused by our maxim, "What goes around comes around." Li Ssu had an occasion to write yet another, even more critical "memorial" in prison, just prior to his execution after more than thirty-five years of distinguished and mostly loyal service to the First Sovereign Emperor. Just two years after the Emperor's death, Hu-hai, his youngest son and illegitimate successor, had Li Ssu convicted on trumped-up charges of sedition, and punished by being cut in half at the waist in the market-place of the capital.

Unfortunately for Li Ssu and the future of the empire, Li Ssu had reluctantly participated with Hu-hai and the evil eunuch Chao Kao in the conspiracy to prevent the eldest royal son Fu Su from taking the throne. Li Ssu knew too much; he had to be disposed of. He falsely confessed to sedition under torture of one-thousand floggings. Yet in an attempt to escape the death penalty, he submitted a "memorial" or confession of his "crimes", rejected by Chao Kao on the grounds that it is inappropriate for prisoners to submit memorials. The crimes recited in the self-denunciating memorial were actually advertisements of his accomplishments.
"Your servant has become Grand Councillor, and has administered the people for more than thirty years. When he arrived within Ch'in's narrow confines, during the time of the former King, Ch'in's territory did not exceed one thousand li, and its soldiers did not number more than a hundred thousand. Your servant used his meager talents to the utmost, carefully establishing laws, secretly sending out plotters, giving them gold and precious stones, and causing them to travel about and advise the feudal lords, and secretly to prepare armor and weapons. He spread the teachings of (imperial) government, gave position to men of arms, honored meritorious officials, and enriched their ranks and revenues. In this was it was possible to seize Han, weaken Wei, destroy Yen and Chao, raze Ch'i and Ch'u, and so finally annex the Six States, make captives of their kings, and establishing (the King of) Ch'in to be Son of Heaven (Emperor). This is his crime number one.
"(Although thus Ch'in's) territory was certainly not lacking in extent, he also expelled the Hu and Ho (barbarians) along the north, and imposed rule upon the various Yueh in the south, thus manifesting Ch'in's power. This is his crime number two
"He honored the great ministers and enriched their ranks and position, so as to strengthen their attachment. This is his crime number three.
"He established the altars of the soil and grain, and repaired the ancestral temple, in order to make his ruler's merit illustrious. This is his crime number four
"He reformed harmful policies, equalized the tou (10.35 litres) and hu ( 5 tous) measures, the measures of weight and size, and the written characters, and made these universal throughout the empire, thus establishing Ch'in's fame. This is his crime number five.
"He laid out imperial highways and inaugurated (imperial) tours of inspection, in order to show (to the people) that their ruler had attained to his every desire. This is crime number six.
"He relaxed the punishments and reduced the collection of taxes in order to further his ruler's (efforts to) win the hearts of the masses, so that the people might honor their ruler and not forget him after death. This is his crime number seven.
"The crimes of one who, as a minister, behaved as Li Ssu had done, would certainly have merited death already long ago; yet the Emperor has been gracious enough to make use of his ability to the utmost even unto the present time. May it please your majesty to look into the matter."
Thus did Li Ssu emphasize the positive factors of his policy, blaming himself for leniency instead of the rigorous enforcement normally required by Legalism! Nevertheless, he was executed along with his alleged co-conspirator, his second son, Yu. As they were being led from the prison, they reminisced about hunting hares with their old yellow dog, then wept. Their kin were exterminated to the third degree—parents, wives, brothers, and children.
Ch’in Shih Huang Ti’s imperial dominance lasted but fifteen years; his purportedly ruthless, imperialistic methods were resented; the influence of the School of Law elaborated by his Grand Councillor diminished with the end of the Ch’in Dynasty. In fact, Shih Huang Ti, despite the praise given him by later totalitarian thinkers such as Mao, was reported hated by his subjects, and the “Ch’in methods” derived from the Legalist School established by Lord Shang were generally despised.

In his analysis entitled ‘The Mistakes of Ch’in’, the Han Dynasty poet and Confucian statesman Chia I (BCE 201-169) faulted the state of Ch’in for not altering the methods it used after it had unified the states; Shih Huang Ti, surrounded by flatterers who dared not criticize him, alienated the people with his tyrannical behavior and punitive methods.

Professor Duyvendak, during his review of a catalogue of books on the history of the early Han dynasty, noticed a critical note attached to the list of authors belonging to the School of Law:

“The School of Law originated with administrative officials. They made promises of rewards trustworthy and penalties definite, in order thereby to give a support to rites and institutions. The I-ching says : ‘The former kings caused their laws to be followed by making punishments clear.’ This is their good side. But when their doctrine was practiced by cruel men, they opposed culture, they eliminated benevolence and love, they relied solely on penalties and law, and wished in this way to bring about order, with the result that cruel harm was done to the nearest relatives, kindness was injured, and for generosity came strictness.”

Emperor Wu (BCE 156-87) of the Han Dynasty succeeding the Ch’in Dynasty is best known for organizing a powerful Confucian state and expanding Chinese territory into nearly the same area that exists today. But he was not the virtuous Confucian he is famous for being. Confucians got along well with the cruel emperor as long as they flattered him, making no objection to his superstitious practices and aspirations to immortality. But a mere sneer or curl of the lip would result in the criminal charge of “dissent of the heart.” The liberal policies of Emperor Wen before him had weakened the state, wherefore Emperor Wu took up the hated Legalist approach of the Ch’in Dynasty to stifle individualism, seize and centralize power, unify the state and embark on imperialist campaigns.

Now China’s most revered historian, Grand Historian Ssu-ma Ch’ien, served under Emperor Wu, whom he ceremoniously praised; nevertheless, he despised his imposition of the Legalist policies. Historians may turn to the past out of disillusionment with the present. Ssu-ma’s love of the past as a historian was bound to put him at odds with the present-oriented, anti-traditional Legalist policies, not to mention that he was himself castrated for speaking up for Li Ling, a courageous infantry commander who had suffered defeat at the hands of the enemy and was captured:

“Before Li Ling fell into the hands of the enemy, a messenger came with the report [of his attack] and the lords and ministers of the Han all raised their cups in joyous toast to the Emperor. But after a few days came word of his defeat, and because of it the Emperor could find no flavor in his food and no delight in the deliberations of the court. The great officials were in anxiety and fear and did not know what to do. Observing His Majesty's grief and distress, I dared to forget my mean and lowly position, sincerely desiring to do what I could in my fervent ignorance. I considered that Li Ling had always shared with his officers and men their hardships and want and could command the loyalty of his troops in the face of death. In this he was unsurpassed even by the famous generals of old. And although he had fallen into captivity, I perceived that his intention was to try to seek some future opportunity to repay his debt to the Han. Though in the end he found himself in an impossible situation, yet the merit he had achieved in defeating and destroying so many of the enemy was still worthy to be proclaimed throughout the world. This is what I had in my mind to say, but I could find no opportunity to express it. Then it happened that I was summoned into council, and I took the chance to speak of Li Ling's merits in this way, hoping to broaden His Majesty's view and put a stop to the angry words of the other officials. But I could not make myself fully understood. Our enlightened Ruler did not wholly perceive my meaning, but supposed that I was trying to disparage the Erh-shih General and plead a special case for Li Ling. So I was put into prison, and I was never able to make clear my fervent loyalty. Because it was believed that I had tried to deceive the Emperor, I was finally forced to submit to the judgment of the law officials. My family was poor and lacked sufficient funds to buy commutation of the sentence. Of my friends and associates, not one would save me; among those near the Emperor no one said so much as a word for me. My body is not made of wood or stone, yet alone I had to face the officials of the law. Hidden in the depths of prison, to whom could I plead my case? This, Shao-ch'ing, is something you must truly have seen for yourself. Was this not the way I always acted? Li Ling had already surrendered alive and destroyed the fine reputation of his family. And then I was thrown into the "silkworm chamber" [where castrations were performed]. Together we became a sight for all the world to laugh at in scorn. Alas, alas! Matters such as these it is not easy to explain in detail to ordinary people.”

Emperor Wu would later exonerate and recall Li Ling, but when he did not return, the emperor had his entire family put to death on the suspicion that he was training enemy troops.

A severe penalty, even for minor offenses, was the rule for Legalist jurists; their draconian doctrine puts our modern Broken Windows theory to shame. The Book of Lord Shang specifies that, “If one desires the people to be correct, it is necessary to prohibit small offences, for big offences originate from small ones. If small offences are not prohibited, it is impossible to obtain that big offences shall not harm the state.” Modern ethics codes provide for the punishment of people who do not denounce colleagues for ethical breaches. The penalty provided by Legalists for failing to inform on a wrongdoer was to have one’s body cut in half, one of the severest of penalties because the halves could not theoretically be rejoined in the afterlife. The person who harbored a criminal would suffer the same punishment as the criminal. Lord Shang himself showed a preference for branding offenders on the top of their heads, extracting their ribs, and boiling the rest in a cauldron.

As for the vaunted merit system: according to Han Fei, the laws Lord of Shang provided for rewards for meritorious military conduct as follows: “He who cuts off one head is given one degree in rank, and those who desire to become an official obtain an office worth 50 piculs. He who cuts off two heads, is given two degrees in rank; and those who desire to become officials are given an office worth 100 piculs.” A picul is the weight of stuff a man may carry on a shoulder-pole, or about 100 catties.

Grand Historian Ssu-ma Ch’ien’s biography quotes the opinion his father, Grand Historian Ssu-ma Tan, of the Legalists. In his ‘Discussion of the Essentials of the Six Schools,’ Ssu-ma Tan was fair and balanced enough to give the Legalists credit where it was due: “They do not distinguish between relations and strangers, and make no difference between noble and low. All were in the same manner judged by the law, so that the virtue of loving one’s relatives and honoring the honorable disappeared. Their doctrines might be practiced for a certain time and for a definite purpose, but they should not be put into practice for ever. Therefore I say that they are severe and are wanting in virtue. However, the fact that they clearly established the differences between the honoured position of a ruler and the low state of a subject, so that their respective functions and duties cannot get entangled, cannot be undone by a hundred schools.”

Moreover, “The Legalists are very strict and of small mercy. But they have correctly defined the distinctions between lord and subject and between superior and inferior, and these distinctions cannot be changed…. The Legalists do not distinguish between those who are close to oneself and those who are distant; they do not differentiate between the honorable and the lowly, but judge all men alike by their laws. If this is so, then the obligation to treat those near to oneself with special deference and to honor those who are worthy of honor is destroyed. Such laws can serve as an expedient for a particular time, but they cannot be used for long. Therefore I say that the Legalists are strict and show little mercy. But in so far as they place the ruler in a lofty position and the subject in a lowly one and make clear the division of authority between the various officers of government so that there can be no usurping of unlawful power, they have a point which the other schools cannot improve upon.

The scholar Sung Tung-p’o (1036-1101) remarked that Lord Shang’s name “is in the world like fly-specks; speaking about him befouls the mouth and tongue, writing about him sullies the paper; when his methods are applied in the world, ruin of the state, misery of the people, destruction of the family and loss of one’s own life follow one after the other.” His opinion prevails until there is too much freedom for order, and totalitarians step in for the Total.
Laws may change in reaction to changing circumstances given the immortal aspirations of the human race evident in the individual will to survive. But the laws have a common origin in the Heavenly Mandate. Occidentals may find little that is exotic in oriental turns of the law, and may congratulate themselves that their wheel is rolling forward from east to west when it too is spinning in place and shall soon roll over them as west becomes east. Emperor Wen may soon be followed by Emperor Wu again. No doubt he shall have his Grand Councillor. The Rule of Law that lawyers speak so fondly of will then be actually imposed.
Quoted Sources:
Bodde, Derk, China’s First Unifier, Hong Kong: Hong Kong University Press, 1967 (includes translations of Ssu-ma Ch’ien’s Shih Chi)
Hughes, E.R., Chinese Philosophy in Classical Times, New York: E.P. Dutton, 1954 (includes translations of Han Fei)
Watson, Burton, Ssu-Ma Ch’ien, Grand Historian of China, New York: Columbia University, 1958
Watson, Burton, transl. Basic Writings of Hsun Tzu
Wing-Tsit Chan, A Source Book in Chinese Philosophy, Princeton: Princeton University Press 1963 (includes translations of Han Fei)
W.K. Liao, transl. The Complete Works of Han Fei Tzu, London: Arthur Probsthain, 1939   Chinese Text Project: The Chinese Text Project is a web-based e-text system designed to present ancient Chinese texts, particularly those relating to Chinese philosophy, in a well-structured and properly cross-referenced manner, making the most of the electronic medium to aid in the study and understanding of these texts





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