Legalism and beyond
Ouza  Updated: 2004-10-26 09:33

Many philosophical thoughts emerged during the Warring States period. Among them, legalism holds a special place since it enabled the state of Qin to conquer the neighboring states and unite China for the first time in history. Armed with legalist thoughts of centralization of power and repression of people, Qin was able to reach the pinnacle of power and swallow the domains of other states. But the great Qin dynasty collapsed only 15 years after its founding, leaving people questioning the virtue of legalism.

Unlike Confucians, legalists concentrate on solving practical problems and establishing a special mechanism of control. Confucians ask kings to use proper social rituals to govern. Legalists, however, ask rulers to use strict laws to keep the state in order. Confucians tell numerous stories about successful leaders in the past and let current leaders follow their example. On the other hand, legalists support governing by law rather than personal example. Furthermore, legalists emphasize absolute and central power in the hands of the ruler. Contrary to Confucians' idea of humanness and righteousness, legalists put the welfare of the state ahead of all human concerns. After decades of intellectual debates and political instability, legalist doctrines finally paved a way for Qin to grow strong militarily and triumph over other states.

The Qin dynasty was based on legalism so its fate was closely related to the success and failure of legalist doctrines. The strength of legalism lies in its belief in a standard legal system. Under legalism, ministers write concrete laws showing common people what are right and wrong, thus setting up a straightforward and understandable standard for the society. Confucius, on the other hand, travels around states and collects good examples of governing. Therefore, Confucian doctrines contain examples of good men and good deeds but are subject to interpretation. Moreover, legalists establish sovereignty in the legal system, therefore enabling laws to have effects on the society rather than staying inactive on paper. Legalism, after all, grows from an urgent need for a more realistic means of organizing society and thus vows to launch a set of laws that would be administered with impartiality. And after Qin succeeded in establishing a well-defined legal system, it could easily make laws to foster military adventure and build grand public projects such as the Great Wall.

In order to achieve a state of harmony and unity, legalists argue that power must be concentrated in the hands of the ruler. If different fractions of the society obtained power, they would then compete with one another and chaos would occur. Centralization of power, together with strict laws, would build a government with a single ruler and keep the society in order. Although its methods of ruling indeed appear practical, it cannot be labeled as completely realistic because of its na?ve assumption of the rational use of power. In supporting concentration of power, it shows an idealistic faith in the proper use of power. In reality, however, when power is absolute, it is more vulnerable to abuse. Because there is a natural desire of leaders to obtain absolute power, internal power struggle eventually tore the Qin government apart. And absolutism also suppresses all critics, thus keeping all valuable suggestions from reaching the king. Legalists believe that the machinery of government would function perfectly and automatically, but Qin's tragedy shows that absolutism makes it vulnerable to corruption.

Another flaw of legalism is its ignorance of common people. According to Li Si, the prime minister of Qin, a ruler wastes his mind in devotion to the people because they are as simple-minded as children. Therefore enforcing censure and punishment is enough to make them obey. Under harsh laws, "people will be busy to remedy their faults and they will have no time for trouble." But in reality, common people spend more time complaining about the cruel legal system than remedying their faults. When severe laws drive people to the edge of exasperation, overthrowing the government becomes the only hope of survival. Peasant revolts directly caused the downfall and Qin Dynasty and proved that people, unlike children, do not bow easily to harsh punishments and ruthless censorship. Terror and strength can conquer a land, but never rule a land.

In addition, legalists argue that minor offense should be punished severely, thus discouraging people from committing even the smallest crime. Henfei Zi, one of the founding fathers of legalism, believes that the best penalties are those that are severe and inescapable, so that people will fear them. Legalists introduce a fear factor into law, arguing that harsh laws would make people scared so to prevent them from committing misdeeds. Laws punish misdeeds, but their function in actually preventing misdeeds has been a subject of debate for a long time. All legal systems, from ancient to modern, punish the act of stealing. But to say that these laws have successfully eliminated the act of stealing in human society is unreasonable. Therefore the legalists' intention in using harsh laws to prevent misdeeds turned out to be fruitless. Qin's law guaranteed death penalty to anyone who starts a revolt, but it clearly did not have any influence on peasant leaders such as Chen Sheng. In contrary, the legal system was so hateful that the action of deliberately breaking it was regarded as brave and heroic.

In the end, what is Qin's "law"? Can those measures that the Qin dynasty used to centralize power and repress people be considered as "laws"? On one hand, Qin's system does give a set of standard rules to the society that everyone has to follow. Therefore it can be thought of as a legal system since it has sovereign power and well-defined standards. But Qin's legal system is very different from our own perception of what a legal system should be. The Qin dynasty, because of its totalitarianism, used the legal system to strengthen the power of the central government and weaken people. Therefore laws were used more as a tool to keep control than a balance to maintain justice. A legal system under a totalitarian government concentrates on how to maintain and strengthen the government by keeping the governing power in a few hands. Absolutism with a legal system is the same as absolutism without a legal system since in both cases the government can do whatever it wants and there is no regulation on its actions. Qin's legal system has a standard, but it is not the standard of the whole society, which includes both the government and the people.

Qin's spectacular failure in governing causes social skepticism regarding legalism. After the collapse of the Qin dynasty, people are more willing to be ruled by humanness and righteousness than harsh laws. Humanness and righteousness do not have a well-defined standard as laws, so it is up to people to interpret them. Therefore China again is ruled by people rather than laws. Chinese in later generations distrusted the law because of Qin's failure. Throughout China's long history, all dynasties found the best legal system that fit the ruler's taste, which caused even more distrust about laws among the people. Chinese society, even today, revolves around a blurry set of standards set by various people in different situations. Chinese laws are carefully constructed and beautifully written on paper, but they have very little influence in the society because the rulers disrespect them and the people distrust them.

Qin's legal system did not work because of the way its ruler viewed it and enforced it. Qin's failure should not be extended to mean that all legal systems do not work. Proper legal systems provide the society with a standard independent of a ruler's whims and social trends. China always has a legal system of some kind. On the other hand, it has never had a democratic government, which puts the law above all, even the government itself.

The above content represents the view of the author only.

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