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Encyclopedia > Legalism (philosophy)

Legalism, in the Western sense, is an approach to the analysis of legal questions characterized by abstract logical reasoning focusing on the applicable legal text, such as a constitution, legislation, or case law, rather than on the social, economic, or political context. Bold textJAMES CHECKLEY Legislation (or statutory law) is law which has been promulgated (or enacted) by a legislature or other governing body. ... Case law (precedential law) is the body of judge-made law and legal decisions that interprets prior case law, statutes and other legal authority -- including doctrinal writings by legal scholars such as the Corpus Juris Secundum, Halsburys Laws of England or the doctinal writings found in the Recueil Dalloz... // Latin root meaning The term social is derived from the Latin word socius, which as a noun means an associate, ally, companion, business partner or comrade and in the adjectival form socialis refers to a bond between people (such as marriage) or to their collective or connected existence. ... Economics (deriving from the Greek words οίκω [okos], house, and νέμω [nemo], rules hence household management) is the social science that studies the allocation of scarce resources to satisfy unlimited wants. ... Politics is the process and method of decision-making for groups of human beings. ... ConTEXT is a freeware text editor aimed for software developers. ...


In its narrower versions, legalism perpetuates the notion that the pre-existing body of authoritative legal materials already contains a uniquely pre-determined "right answer" to any legal problem that may arise; and that the task of the judge is to ascertain that uniquely predetermined answer by an essentially mechanical process.


This Western school of the application of laws has little connection to the Chinese philosophical school of the same name that is discussed from here on.

Contents


Chinese legalism

In Chinese History, legalism (法家; pinyin Fǎjiā) was one of the four main philosophic schools in the Spring and Autumn Period and the Warring States Period (Near the end of the Zhou dynasty from about the sixth century B.C. to about the third century B.C.). It is actually rather a pragmatic political philosophy, with maxims like "when the epoch changed, the ways changed" as its essential principle, than a jurisprudence. In this context, "legalism" here can bear the meaning of "political philosophy that upholds the rule of law", and is thus distinguished from the word's Western sense. Han Feizi believed that a ruler should govern his subjects by the following trinity: China is the worlds oldest continuous major civilization, with written records dating back about 3,500 years and with 5,000 years being commonly used by Chinese as the age of their civilization. ... Pinyin (Simplified Chinese: 汉语拼音; Traditional Chinese: 漢語拼音; Pinyin: HànyÇ” PÄ«nyÄ«n), also known as scheme of the Chinese phonetic alphabet (Simplified Chinese: 汉语拼音方案; Traditional Chinese: 漢語拼音方案; Pinyin: HànyÇ” PÄ«nyÄ«n fāngàn), while pin means spell(ing) and yin means sound(s)), is a system of romanization (phonemic notation... The Hundred Schools of Thought (諸子百家 Pinyin: zhÅ« zǐ bÇŽi jiā) was an era of great cultural and intellectual expansion in China that lasted from 770 BCE to 222 BCE. Coinciding with the Spring and Autumn and Warring States periods, and also known as the Golden Age of Chinese thought... The Spring and Autumn Period (Chinese: 春秋時代; Hanyu Pinyin: ) represented an era in Chinese history between 722 BC and 481 BC. The period takes its name from the Spring and Autumn Annals, a chronicle of the period whose authorship was traditionally attributed to Confucius. ... Alternative meaning: Warring States Period (Japan) The Warring States Period (traditional Chinese: 戰國時代, simplified Chinese: 战国时代 pinyin Zhànguó Shídài) takes place from sometime in the 5th century BC to the unification of China by Qin in 221 BC. It is nominally considered to be the second part of the... Jurisprudence is essentially the theory and philosophy of law. ... The rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. ... Traditional Chinese: 韓非子 Simplified Chinese: 韩非子 Pinyin: Hán FÄ“izǐ Wade-Giles: Han Fei-tzu Han Feizi (韓非子) (d. ...

  1. Fa (法 fǎ): law or principle. 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 is systemically predictable. In addition, the system of law ran the state, not the ruler. If the law is successfully enforced, even a weak ruler will be strong.
  2. Shu (術 shù): method, tactic or art. Special tactics and "secrets" are to be employed by the ruler to make sure others don't take over control of the state. Especially important is that no one can fathom the ruler's motivations, and thus no one can know which behaviour might help them getting ahead; except for following the fa or laws.
  3. Shi (勢 shì): legitimacy, power or charisma. It is the position of the ruler, not the ruler himself, that holds the power. Therefore, analysis of the trend, the context and the facts are essential for a real ruler.

Power Politics

Legalism was the central governing idea of the Qin Dynasty, culminating in the unification of China under the 'First Emperor' (Qin Shi Huang). This is the ruler featured in the 2002 movie Hero, and several other films. Legalist thought has often been compared to the work of Italian strategist Niccolo Machiavelli and the Arthashastra of Kautilya. The Qin Dynasty (Chinese: 秦朝; Hanyu Pinyin: ; Wade-Giles: Chin Chao) (221 BC - 206 BC) was preceded by the Zhou Dynasty and followed by the Han Dynasty in China. ... Qin Shi Huang (秦始皇; Hanyu Pinyin: Qín Shǐ Huáng; Wade-Giles: Chin Shih-huang) (November / December 260 BCE – September 10, 210 BCE), personal name Zheng, was king of the Chinese State of Qin from 247 BCE to 221 BCE, and then the first emperor of a unified China... Hero (Chinese: 英雄; pinyin: ) is a film first released in China on October 24, 2002. ... Detail of the portrait of Machiavelli, ca 1500, in the robes of a Florentine public official Niccolò Machiavelli (May 3, 1469—June 21, 1527) was an Italian political philosopher during the Renaissance. ... Arthashastra (also spelt Arthasastra) or the Handbook of Profit is an ancient Indian treatise on economics and politics written sometime between the 4th century BC and 150 AD by the kingmaker Chanakya (also known as Kautilya or Vishnugupta) during the early years of the Mauryan Empire. ... Chanakya (c. ...


Introduction

Law was used to create paradox by which the Emperor's agents could then pick and choose what law would be enforced. The "art" (Shu) was in the clever excess of laws created, which, though individually simple and clear, created a framework where mere accusation would find most anyone of any station in violation of something, with their innocence difficult if not impossible to prove. Here the "special tactics" came to bear, as selective enforcement ultimately occurred at the pleasure of the Emperor. Power was expressed as much by prosecution of the law as by selection of which law to prosecute, and by the absence or cessation of prosecution due to yet another contravening law. Here the mystery of the Emperor's pleasure was communicated to the masses. Even those who wielded power on behalf of the Emperor were subject to the pernicious web woven under this doctrine of legalism. The motivation of the Emperor was hard to know, as submission to one law readily brought one into conflict with another. Thus, only the Emperor was perfect. The controlling advantage was ever in the hands of the Emperor, who would always control the choice (or creation) of the final law to be brought to bear upon any situation.


Most Chinese philosophers and political thinkers have had very negative views toward Legalism blaming it for what today would be considered a totalitarian society. Many Chinese scholars believe that it was a reaction against legalism that gave Chinese Imperial politics its personalistic and moralistic flavor rather than emphasis on the rule of law. However, this view of the Qin may be biased, as most of the Chinese historical records were written by Confucian scholars, who were persecuted under the Qin. Totalitarianism is a typology employed by political scientists, especially those in the field of comparative politics, to describe modern regimes in which the state regulates nearly every aspect of public and private behavior. ... The rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. ... Confucianist temple Thian Hock Keng in Singapore Confucianism (Chinese: 儒学, Pinyin: Rúxué‚ [ ] , literally The School of the Scholars; or, less accurately, 孔教 Kŏng jiào, The Religion of Confucius) is a Chinese ethical and philosophical system originally developed from the teachings of the early Chinese sage Confucius. ...


The Role of the Ruler

Primarily members of the ruling class, the Legalists emphasized that the king as head of state was endowed with the "mystery of authority” (shih), and as such his decisions must always command the respect and obedience of the people. The king’s very figure brought legitimacy. In emphasizing the power of kingship, Legalists such as Shen Dao (ca. 350-275 BC) and Shen Buhai sought to devalue the importance of the charismatic ruler. Thus, subjects were compelled to obey even the most vile, ruthless, and/or incompetent rulers. Skillful rulers hid their true intentions and feigned nonchalance. To ensure that all of his words were revered, the wise ruler kept a low profile. Thus, theoretically, by cloaking both his desires and his will, the Legalist king checked sycophancy and forced his underlings to heed his dictates. While Shang Yang (the Prime Minister of Duke Xiao of Qin) would allow rulers to listen to musical instruments rather than focus on foreign policy, Han Feizi (the Legalist scholar most admired by the First Qin Emperor, Qin Shihuangdi) demanded even more of the wise ruler. A good leader, by Han Feizi's standards, must not only accept the advice of loyal ministers when shown to be in error, but must also extend courtesy to those beneath him and not be too avaricious. The adept ruler also understood the importance of being strict over benevolent. Although the ruler was expected to be paternalistic, the Legalists emphasized that being too kind would spoil the populace and threaten the state's internal order. Interestingly, according to Han Grand Historian Sima Qian (ca. 145-86 BC), while the First Qin Emperor would hide himself from the rest of the world (perhaps due to a desire to attain immortality) and thus maintain a low profile, he would not necessarily follow all of the Legalists’ advice on the role of the ruler. Shen Dao (simplified Chinese and traditional Chinese: 慎到) (ca 350 BC-275 BC) was an itinerant Chinese philosopher from Zhao who also served at the Jixia academy in Qi. ... Shen Buhai (simplified Chinese and traditional Chinese: 申不害) (d. ... Shang Yang (商鞅) (d. ... Traditional Chinese: 韓非子 Simplified Chinese: 韩非子 Pinyin: Hán FÄ“izǐ Wade-Giles: Han Fei-tzu Han Feizi (韓非子) (d. ... Qin Shi Huang (秦始皇) (November or December 260 BC - September 10, 210 BC), personal name Zheng, was king of the Chinese State of Qin from 247 BC to 221 BC, and then the first emperor of a unified China from 221 BC to 210 BC, ruling under the name First... Traditional Chinese: 韓非子 Simplified Chinese: 韩非子 Pinyin: Hán FÄ“izǐ Wade-Giles: Han Fei-tzu Han Feizi (韓非子) (d. ... The Han Dynasty (Traditional Chinese: 漢朝; Simplified Chinese: 汉朝; Hanyu Pinyin: ; Wade-Giles: Han Chau; 206 BC–AD 220) followed the Qin Dynasty and preceded the Three Kingdoms in China. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... Qin, Qín or Chin (Wade-Giles) can refer to. ...


The Role of Ministers in Legalist Thought

To aid the ruler and help prevent misgovernance, Shen Buhai – a minister from the state of Han for fifteen years - formalized the concept of shu (“methods”), or the bureaucratic model of administration that served to advance the ideal Legalist ruler’s program. To the Legalists, the intelligent minister was the ruler's most important aide. Whereas the minister’s duty was to understand specific affairs, the ruler was responsible for correctly judging ministers’ performances. Stressing that ministers and other officials too often sought favours from foreign powers by abusing their positions, Han Feizi urged rulers to control these individuals by the two handles of punishment and favour. Officials were required to ensure that ministers' accomplishments were neither greater than nor inferior to the assigned undertaking. According to the eminent Sinologist Robin Yates, newly discovered Qin legal codes show that officials were required to correctly calculate the exact amount of labor expected of all artisans; if the artisan was ordered to perform either too much work or too little work, the official would be held accountable. Thus, in Legalist theory, ministers and other officials were prevented from performing some other official's duties and were punished if they attempted to blind the ruler with words or failed to warn the ruler of danger. One consequence of this situation was that the minister could always be held accountable for royal misadventures while the ruler’s name was never to be tarnished. By emphasizing performance, however, over sophistry, the Legalists hoped to eliminate bureaucratic corruption and intrigues amongst the officialdom through fear. Shen Buhai (simplified Chinese and traditional Chinese: 申不害) (d. ... The Han (simplified Chinese: 韩, traditional Chinese: 韓) was a state during the Warring States Period in China. ... Traditional Chinese: 韓非子 Simplified Chinese: 韩非子 Pinyin: Hán FÄ“izǐ Wade-Giles: Han Fei-tzu Han Feizi (韓非子) (d. ... Qin, Qín or Chin (Wade-Giles) can refer to. ...


The Purpose of Law

While the laws promulgated by the Legalists were ostensibly meant to benefit the common people, in reality, these laws aimed at benefiting the state by placing war and agriculture at the forefront of state policy. Shang Yang, especially, would emphasize agriculture and war as the most important factors in governance. Good laws ensured that the people remained uneducated and perplexed, allowing them to be used as soldiers, as well as to till the soil. Artists, craftsmen, and merchants were viewed as useless citizens, who could neither fight nor produce food for the army. The Legalist emphasis on war as being critical to state survival required a populace that was eager for war. To create an aggressive populace, the Legalists insisted that the government enforce hateful policies to weaken the people and make them servile to the state’s interests. Shang Yang (商鞅) (d. ...


Yet, if the laws supported by the Legalists were meant to support the state, the king, and his military, they were also reform-oriented and innovative. In theory, the Legalists believed that if the punishments were heavy and the law equally applied, neither the powerful nor the meek would be able to escape state control. The Legalists especially emphasized pragmatism over precedence and custom as the basis of law. Guided by Legalist thought, the First Qin Emperor would weaken the power of the feudal lords (although not completely as previously discussed), divide the unified empire into thirty-six administrative provinces, and standardize the writing system. Reflecting Legalist passion for order and structure, Qin soldiers were only mobilized when both halves of tiger-shaped tallies (one held by the ruler and the other by the commanding general) were brought together. Likewise, all documents in the empire had to have recorded the year they were written, the scribe who copied them, and up to the exact hour of delivery. Accepting Shang Yang’s earlier emphasis on the standardization of weights and measures, the First Qin Emperor would also accept Shang Yang’s philosophy that no individual in the state should be above the law (by ensuring harsh punishments for all cases of dissent) and that families should be divided into smaller households. While there is reason to doubt Sima Qian’s claim that the First Qin Emperor did in fact divide households into groups of ten, certainly the other examples of standardization and administrative organization undertaken by the First Emperor reflect the importance of Legalist thought in Qin law. Based on promoting the interests of the state, Qin fa served as a vehicle to both control the populace and eliminate dissent. Qin Shi Huang (秦始皇) (November or December 260 BC - September 10, 210 BC), personal name Zheng, was king of the Chinese State of Qin from 247 BC to 221 BC, and then the first emperor of a unified China from 221 BC to 210 BC, ruling under the name First... Shang Yang (商鞅) (d. ... Qin Shi Huang (秦始皇) (November or December 260 BC - September 10, 210 BC), personal name Zheng, was king of the Chinese State of Qin from 247 BC to 221 BC, and then the first emperor of a unified China from 221 BC to 210 BC, ruling under the name First... Shang Yang (商鞅) (d. ... Qin Shi Huang (秦始皇) (November or December 260 BC - September 10, 210 BC), personal name Zheng, was king of the Chinese State of Qin from 247 BC to 221 BC, and then the first emperor of a unified China from 221 BC to 210 BC, ruling under the name First... Qin, Qín or Chin (Wade-Giles) can refer to. ...


Legalism and Individual Autonomy

The Legalist philosophers emphasized the primacy of the state over individual autonomy. The lone individual had no legitimate civil rights and any personal freedom had to be undone to strengthen the ruler. Han Feizi, in particular, would be very caustic towards the concept of individual rights. Fundamentally, the Legalists viewed the plebeian and his actions as evil and foolish. Whereas, in legendary antiquity, men were few and scattered such that there was general abundance, the Legalists maintained that their times were dominated by overpopulation and a poverty of goods. Consequently, according to Shang Yang, the people themselves wanted a ruler to generate order. Social cohesion in the Legalist state mandated that the populace never escape punishment. The Qin dynasty used the people, for example, to maintain vigilant mutual surveillance over one another under threat of death. This intrastate realpolitik would end up devouring the Legalist philosophers themselves. Shang Yang, in advocating the state’s right to punish even the heir-apparent’s tutor, would run afoul of the future King Huiwen of Qin (r. 338-311 BC). Whereas at one point, he had the power to exile his opponents (and, thus, eviscerate individual criticism) to border regions of the state, he died when torn into pieces by chariots. Similarly, Han Feizi would end up being poisoned by his envious former classmate Li Si, who in turn would be killed (under the law he had introduced) by the violent Second Qin Emperor he had helped to enthrone. Traditional Chinese: 韓非子 Simplified Chinese: 韩非子 Pinyin: Hán FÄ“izǐ Wade-Giles: Han Fei-tzu Han Feizi (韓非子) (d. ... Shang Yang (商鞅) (d. ... The Qin Dynasty (Chinese: 秦朝; Hanyu Pinyin: ; Wade-Giles: Chin Chao) (221 BC - 206 BC) was preceded by the Zhou Dynasty and followed by the Han Dynasty in China. ... Shang Yang (商鞅) (d. ... Traditional Chinese: 韓非子 Simplified Chinese: 韩非子 Pinyin: Hán FÄ“izǐ Wade-Giles: Han Fei-tzu Han Feizi (韓非子) (d. ... Li Si (Chinese: 李斯; pinyin: ; Wade-Giles: Li Ssu) (ca. ...


Decline

In later dynasties, Legalism was discredited and ceased to be an independent school of thought. However, both ancient and modern observers of Chinese politics have argued that some Legalist ideas have merged with mainstream Confucianism and still have a role to play in government. Confucianist temple Thian Hock Keng in Singapore Confucianism (Chinese: 儒学, Pinyin: Rúxué‚ [ ] , literally The School of the Scholars; or, less accurately, 孔教 Kŏng jiào, The Religion of Confucius) is a Chinese ethical and philosophical system originally developed from the teachings of the early Chinese sage Confucius. ...


More recently, Mao Zedong, who had some knowledge of ancient Chinese philosophy, compared himself with Qin Shi Huang and publicly approved of some Legalist methods. However, since the 1990s the related concept of the rule of law has gained currency. To meet Wikipedias quality standards, this article or section may require cleanup. ... Qin Shi Huang (秦始皇; Hanyu Pinyin: Qín Shǐ Huáng; Wade-Giles: Chin Shih-huang) (November / December 260 BCE – September 10, 210 BCE), personal name Zheng, was king of the Chinese State of Qin from 247 BCE to 221 BCE, and then the first emperor of a unified China... This article is about the year. ... The rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. ...


Related figures

The Confucian thinker Xun Zi is sometimes considered as being influenced by or having nourished Legalist ideas, mostly because two of his disciples (Li Si and Han Fei Zi) were strict Legalists. Confucianism (儒家 Pinyin: rújiā The School of the Scholars), sometimes translated as the School of Literati, is an East Asian ethical, religious and philosophical system originally developed from the teachings of Confucius. ... Xunzi Xún Zǐ (荀子, or Hsün Tzu c. ... Li Si (Chinese: 李斯; pinyin: ; Wade-Giles: Li Ssu) (ca. ... Traditional Chinese: 韓非子 Simplified Chinese: 韩非子 Pinyin: Hán Fēizǐ Wade-Giles: Han Fei-tzu Han Feizi 韓非子 (d. ...


Related philosophies

Confucianist temple Thian Hock Keng in Singapore Confucianism (Chinese: 儒学, Pinyin: Rúxué‚ [ ] , literally The School of the Scholars; or, less accurately, 孔教 Kŏng jiào, The Religion of Confucius) is a Chinese ethical and philosophical system originally developed from the teachings of the early Chinese sage Confucius. ... This article or section is missing references or citation of sources. ... Founded by Mozi, Mohism (墨家), or Moism, is a Chinese philosophy that evolved at the same time as Confucianism, Taoism and Legalism (Hundred Schools of Thought). ... Platonic idealism is the theory that the substantive reality around us is only a reflection of a higher truth. ... Realism is commonly defined as a concern for fact or reality and rejection of the impractical and visionary. ...

Contrasting philosophies

Taoism (sometimes written as Daoism) is the English name for: (a) a philosophical school based on the texts the Dao De Jing (ascribed to Laozi) and the Zhuangzi. ... A restored Stoa in Athens. ...

Korean legalism

The history of Korea's legalism is traced to the Gyeonggukdaejeon, a law book compiled in the Joseon dynasty. There is a mixed perception of legalism within South Korean society, as the post-WWII military regime used the idea of legalism as a tool of its governance. The ideas are related to Chinese legalism, but often distinguished because of Korean distaste for what they see as Chinese use of legalism in attempting to legitimize Han imperialism.[1] Korea (Korean: (ì¡°ì„  or 한국, see below) is a civilization and geographical area situated on the Korean Peninsula in East Asia, bordering China to the northwest and Russia to the northeast, with Japan situated to the southeast across the Korea Strait. ... The Joseon Dynasty was the final ruling dynasty of Korea, then called Joseon, lasting from 1392 until 1910. ... Motto: 널리 인간 세계를 이롭게 하라 (Broadly bring benefit to humanity, 弘益人間) Anthem: Aegukga Capital Seoul Largest city Seoul Official language(s) Korean Government President Prime Minister Presidential democracy Roh Moo-hyun Han Myung-sook Establishment - Gojoseon - Declaration of Republic - Liberation - First Republic 2333 BC March 1, 1919 August 15, 1945 August 15, 1948 Area  - Total... The Supreme Council for National Reconstruction, initially named the Revolutionary Committee, was a group of Korean officials. ...


References

  • Barbieri-Low, Anthony, trans. “The Standard Measure of Shang Yang (344 B.C.).” 2006.
  • Creel, H.G. “The Totalitarianism of the Legalists.” Chinese Thought from Confucius to Mao Tsê-tung. Chicago: The University of Chicago Press, 1953.
  • Duyvendak, J.J.L., trans. The Book of Lord Shang: A Classic of the Chinese School of Law. London: Probsthain, 1928.
  • Graham, A.C., Disputers of the TAO: Philosophical Argument in Ancient China (Open Court 1993). ISBN 0812690877
  • Pu-hai, Shen. “Appendix C: The Shen Pu-hai Fragments.” Shen Pu-hai: A Chinese Political Philosopher of the Fourth Century B.C. Translated by Herrlee G. Creel. Chicago: The University of Chicago Press, 1974.
  • Qian, Sima. Records of the Grand Historian, Qin Dynasty. Translated by Burton Watson. New York: Columbia University Press, 1993.
  • Schwartz, Benjamin I. The World of Thought in Ancient China. Cambridge, MA: The Belknap Press of Harvard University Press, 1985.
  • Watson, Burton, trans. Han Fei Tzu: Basic Writings. New York: Columbia University Press, 1964.

Notes

  1. ^ Song Dae-keun, "Use Legalism to Govern the Nation." Dong-a Ilbo, January 2, 2006
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  Results from FactBites:
 
Legalism (philosophy) - Wikipedia, the free encyclopedia (2294 words)
Legalism, in the Western sense, is an approach to the analysis of legal questions characterized by abstract logical reasoning focusing on the applicable legal text, such as a constitution, legislation, or case law, rather than on the social, economic, or political context.
In this context, "legalism" here can bear the meaning of "political philosophy that upholds the rule of law", and is thus distinguished from the word's Western sense.
Legalism was the central governing idea of the Qin Dynasty, culminating in the unification of China under the 'First Emperor' (Qin Shi Huang).
Legalism (568 words)
Legalism is a political philosophy that does not address higher questions pertaining to the nature and purpose of existence.
Shang Yang was particularly important for the development of legalism since it was he who served as governor of the state of Ch'in and strengthened it to the extent that it was able to unify China in the following century.
The viciousness of the Ch'in dynasty served to discredit Legalism.
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