Chinese Legalism

In Our Time: Series 18, Episode 11


Sophistry and cleverness are an aid to lawlessness; rites and music are symptoms of dissipations and licence; kindness and benevolence are the foster‑mother of transgressions; employment and promotion are opportunities for the rapacity of the wicked.

The Book of Lord Shang

I once read a biography of Mao written by his doctor.  As you would expect, what it described was horrendous.  With a  book like that you remember two things: the general  background tone, and a couple of specific examples.  The two specifics I remember are: (1) Mao liked to wash his genitals in the genitals of his “harem” to keep the member’s member clean (which tended to do the opposite for him and everyone else), and (2) when he went on trips it was someone’s job to make sure everything he saw from the train/car/whatever looked like he imagined it would look, i.e. healthy, happy workers waving joyfully.  Meanwhile, of course, famine, despair and fear.  Which is the background tone: horrible, always in the gut gnawing your humanity out, fear.

The week before the podcast on Chinese Legalism played Melvyn said that it was a school of thought that, among other things, contained the idea that all people were equal before the law.  This, of course, sounds rather good, but what was described in the actual episode sounded like a nightmare state with all the hallmarks of brutal dictatorships everywhere ever since.

Studying history makes me feel both well informed and depressed.  It doesn’t take long to figure out that societies that exhibited a “good vibe” and societies that had a “bad vibe” have certain qualities regardless of the culture that built them, or the time when they existed.  Once humanity got on to farming and large settlements the templates of societies were set.  You could, for example, be fairly open and tolerate mixing, trade and exchange, and allow people to think more or less what they want so long as it doesn’t cause any trouble.  Or you could do the opposite of those things.  Both versions work, although only in one are people actually happy.  Realising this becomes depressing once you see that we seem as a species drawn more to the authoritarian model.  Authoritarianism’s great appeal is that is “simpler” and “gets things done”.  Non-authoritarian groups tend to muddle through.

Before I go any further I’ll admit something first: I know very little about Chinese history outside the 20th century.  For this reason I’ve had to do quite a bit of poking around to get all of this into shape in my head.  For example, this period of time in Chinese history is one in which things we think of as quintessentially Chinese came into existence, but I wasn’t really aware of that.

From the Zhou (say “Joe”), via the Warring States period and Qin (say “Chin”), and on to the Han we see Confucius, a geographically united China, the Great Wall, the terracotta army, the standardised language… it’s a long list.  Mind you, it’s also a long time period.  The end of the Zhou to the start of the Han covers 500 years.

Chinese Legalism comes into shape with a few key people in the Qin period.  Shang Yang and Han Fei were the earliest developers and practitioners, while China’s “first emperor” Qin Shi Huang implemented it at an imperial level.  If you take Shang Yang and Han Fei together you get the big idea of standardisation which runs from weights and measures through to a codified legal system:

The law code must be clearly written and made public. All people under the ruler were equal before the law. Laws should reward those who obey them and punish accordingly those who dare to break them. Thus it is guaranteed that actions taken are systematically predictable. In addition, the system of law, not the ruler, ran the state, a statement of rule of law. If the law is successfully enforced, even a weak ruler will be strong.


Which sounds pretty good, but hinges on how the word “punish” is interpreted.

You don’t simply punish somebody who perpetrates the crime, but you might be taking out his entire family, his entire district…. Mutual implication was one of those principles underlying punishment.  That means if you fail to report a crime you would be punished as severely.

Roel Sterckx

Punishment was public.  This helps to promote fear.  Let’s remember that the punishments are things like boiling people alive, quartering people, disfiguring people, amputations.  Melvyn asks how this is different from a reign of terror.  Roel tells us that it isn’t.

To use a more contemporary example think of the kid who talks in class all the time.  How can the teacher discipline them?  They could:

  1. punish the whole class
  2. punish that kid in front of the whole class
  3. send the kid out and punish them
  4. send the kid out and talk with them

I think we’ve covered the basics of a justice system if we also add two other ideas: the degree to which the rules are known in advance, and the degree to which the teacher’s actions are consistent.

The period of the rise and fall of the state of Qin (4th century BCE -207BCE) and legalism seems to have been characterised by techniques one and two from the teachers’ handbook on classroom management.  On the plus side the rules and the consistency would be very high.  On the down side would be the public boiling of the kid who wouldn’t stop talking, and then the public execution of the whole class.  Overall you might say that the rest of the school was VERY well behaved afterwards, but I’m not sure this is something to be praised.

Treating people equally according to a written code is a pretty good idea.  Of course, who gets to write the code is important.  History waits a while before the idea that the people the code applies to should write it.  Enforcing the code through fear and brutality is not attractive.  Roel tells us that Qin society must be seen as “tense”, one in which its citizens spied on each other.

These then are principles that can be used to measure any society: (1) is there a consistent and widely understood code of conduct, (2) who wrote that code,  (3) how is the code enforced, and (4) how are people who break the rules treated?

My superficial understanding of Chinese Legalism suggests that point one above is to be celebrated as a powerful concept for a fairer society, but points two, three and four were conducted – in the case of Qin – in a quite horrific way.  It’s all very well to celebrate the standardised roads, Great Walls, and unified language, but centralised power and infrastructure also tends to monoculture, dictatorship, and the funneling of resources towards the disproportionate benefit of a few.  Perhaps the final nail in the coffin of Chinese Legalism’s reputation would be how enthusiastic Mao was for it.  The dictatorship of the people’s will is preferable to all this, but doesn’t need to be oversold.  It’s better, but not perfection.

Not that we should aim for perfection.  Anyone doing that can be called a fanatic and should be avoided at all costs.  Better by far to muddle through.

Two cheers for democracy.

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I wrote a book called Kaitiaki o te Pō

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