Legalism is a school of ancient Chinese philosophy that prioritizes the establishment of social order over any other ideal. Han Feizi is a Legalist Chinese philosopher who has synthesized previous Legalist philosophies and believes that some philosophers, including his teacher Xunzi, have overestimated the necessity and practical value of virtue in building an orderly society. This paper will briefly discuss why Han Feizi believes his philosophy is superior to Confucian virtue-based governance philosophy, the potential weaknesses in Han Feizi’s philosophy, and why virtue-based governance is necessary regardless.
The Confucian approach to governing is to cultivate virtues in the people. In contrast to Legalists, Confucians dislike governing through reward and punishment because although citizens will adapt to “avoid punishments,” they “will be without a sense of shame” (2.3 Analects). Without a sense of shame, people will act good primarily out of their fear of punishment, not their moral compass and an innate desire to be a good person. The Confucian alternative is to employ virtuous and wise leaders to lead through their excellence and teach people how to behave through wisdom and rituals. This approach will help people “develop a sense of shame” and “order themselves” naturally because they will come to understand and place their faith in a system of moral values that promotes their community’s wellbeing (2.3 Analects).
Han Feizi, on the other hand, considers virtue-based governance philosophies deeply flawed. The first reason is that it is more probable for a state to have mediocre rulers. Sage rulers, like “Yao,” or horrible rulers, like “Zhou,” “emerged only once in every thousand generations” (330 Ivanhoe). If the reality is that governments usually get mediocre rulers, intellectuals should optimize their governance philosophies for assisting mediocre rulers. The ideal outcome is to have mediocre rulers rule competently by helping them “hold to the law” and use the power of their position as wisely as they can (330-331 Ivanhoe).
The second reason is that the Confucian focus on developing virtues in leaders will not necessarily make people listen to them, so virtue is an overrated and non-essential quality for a competent political leader. Because “few are able to yield to righteousness” in reality, being virtuous does not necessarily bring one authority, which is a necessary quality for rulers to have to inspire and organize people to build a better society. Virtue, furthermore, is not even necessary for ruling because people “naturally submit to the power of position” (341-342 Ivanhoe). He references a historical fact to support his argument: “When Yao [an ancient sage Chinese emperor who later brought prosperity to his kingdom] was a commoner he could not bring order to three people,” while the horrible king Jie easily wreaked havoc on the world (327 Ivanhoe). The underlying point is that any man with authority can bring much more substantial impact, whether negative or positive, on society than a virtuous man with little influence.
The last reason is that although having virtues like “benevolence and righteousness” may help individuals gain trust from others and employment in the government, it may ruin the stability of a state. Populating the government with benevolent and righteous people may destroy the state because such individuals are too soft-hearted to have the discipline and emotional resilience to enforce the law and government orders for the greater good (345 Ivanhoe). Han Feizi believes using heavy-handed and inhumane measures is inevitable and essential to maintaining order. Benevolent and righteous people are incapable of carrying out orders that use such measures for maintaining social stability because doing so may be against their values.
To overcome the weaknesses of virtue-based governance philosophies, Han Feizi proposes his alternative that is based on the premises that people have “the minds of infants” who cannot think long-term and are self-interested and that mediocre people run the government (358 Ivanhoe). Because people are unreliable, the sage ruler’s highest priority is to “not wait for people to be good… [but to] creates a situation in which people find it impossible to do wrong” (357 Ivanhoe). To construct an ideal environment where everyone behaves properly, rulers should enforce clearly formulated laws designed for infantile-and-selfish-minded people through lavish reward and harsh punishment. Between rulers and ministers, they should also follow a practical set of strategies to make sure the ruler gets to implements best policies.
The first component of Han Feizi’s governance philosophy is the usage of fa (law), which consists of specific laws and standards for his citizens and ministers. Rulers will also devise matching reward and punishment methods to enforce fa. To make sure fa is implementable and understandable, the drafter should create clear laws and standards. Otherwise, if fa is explained in “wise” but mysterious language, few in the masses will understand and follow the fa and enforcing it becomes difficult, rendering its creation pointless (334 Ivanhoe). In terms of the application of fa, the ruler not only should apply well-formulated fa to society at large but also use fa to detect “errors” and “evaluate accomplishments” of his ministers (319 Ivanhoe). As a result, competent ministers will be selected to govern and “the relationship between ruler and minister will be clearly defined and the state will be easy to govern” (319 Ivanhoe). The ministers will not overstep their authority and perform only duties assigned to them, and everyone will behave civilly because they are all scared of getting punished for breaking any fa and appreciate the reward for following fa and fulfilling relevant standards. Everyone will thus behave in an expected and orderly manner.
Furthermore, for those within the government, the set of ruler-minister interaction strategies consist of shu for the ruler (administrative methods) and general advice for the ministers to assist their ruler better. Han Feizi’s faith here is placed on techniques, not virtues. A ruler of mediocre potential is at his best when he manages to preserve political stability and acquire the best solutions to problems. To do so, he must be in an optimal mental state to judge well and ensure his subordinates are obedient and hard-working.
To maintain good judgment, the ruler “should never reveal what he desires” to prevent the ministers from adjusting their behavior accordingly to gain his favor or deceive him for their personal gains. Intentionally dispensed “concern,” desires, “experience and wisdom,” the ruler’s mind will “remain empty” (315 Ivanhoe), effectively hiding his thoughts. In turn, the ruler can calmly observe “the defects of others” and cannot be deceived. (309 Ivanhoe). When the ruler is mysterious and perceptive, his resulting powerful vibe will psychologically intimidate the ministers into “fully exert[ing] themselves in making plans” and constantly improving their skills. Because they do not know what the clear-headed ruler wants and cannot manipulate his judgment, they have to give their best effort to create solutions that actually work the best (309 Ivanhoe). As these carefully thought-out plans yield satisfactory results, the ruler can take the credit for himself and inspire more awe in his subordinates (314, 315 Ivanhoe). The subordinates will continue to work hard and devote themselves fully to improving the country without wasting their energy in playing politics. This becomes a virtuous cycle.
On the ministers’ end, they should construct and push their plans not based on their own or the ruler’s biases but “public standards” from fa (334 Ivanhoe). They must persuade the ruler of what they believe to be the best course of action by “highlighting those qualities” that are aligned with relevant public standards and “scolding the ruler for not carrying” out such well-formulated plans (334 Ivanhoe). Therefore, the minister will always strive to present and implement the best plan based on clear and observable standards to the ruler.
Even though Han Feizi has contributed to ancient Chinese philosophy greatly by pointing out the utility limits of virtue in governing, his alternative governance theory is also problematic in many ways. The first problem with Han Feizi’s governance philosophy is that if the punishment is too harsh, people will oppose the government. Ancient Chinese people overthrew the Qin dynasty because the authoritarian Qin government took the Legalist approach and implemented brutal punishment methods (Britannica).
Another criticism will be that a legal system that relies heavily on extrinsic positive reinforcement will cause people to have less incentive to do good than they otherwise would have. Offering cash to British women to incentivize them to donate blood will reduce their likelihood to donate blood by 50% (114-115 Grant). This psychological phenomenon and the failure of the Qin dynasty together suggest another critical issue in Han Feizi’s approach—is it possible for humans to devise and heavily rely on a functional and well-balanced reward and punishment system, rather than the power of the individual, to run an entire country?
Han Feizi may argue that it is always to find a useful reinforcer for every behavior. However, even if one assumes the state will always find an ideal reinforcer for every behavior the state desires to reinforce, Han Feizi’s reward-and-punishment approach does not guarantee long-term social stability, defeating his original purpose to build absolute social stability.
Dan Ariely, a behavioral economist and professor from Duke University, has demonstrated through experiments that “market norms tend to overpower social norms” (Reischer). Social norms are behaviors and attitudes acquired and maintained without direct reinforcers. Market norms are transactional attitudes and behaviors. What he finds is that rewarding children for good behaviors will gradually make them think in terms of “what’s in it for me” even for social norms (Reischer). Children simply stop performing the activity once the reward disappears and this transactional mentality will carry to how they acquire new social behaviors. Considering that Han Feizi assumes civilians are infantile-minded, this study shows the risk of implementing reward and punishment on a societal scale. What if the ruler fails to supply the rewards to his infantile subjects for an extended period of time (e.g. after a natural disaster)? This shortage will cause great social instability. Being a good citizen often entails following social norms that do not guarantee an external reinforcer (e.g. not stealing your neighbor’s mail). Han Feizi’s approach will turn many such social norms into market norms. It is reasonable to suspect that when extensive behavioral reinforcers are applied and suddenly taken away on a collective scale, the masses will not continue behaving properly when the government fails to provide relevant reinforcers, like the children in the study.
This is why I believe Xunzi and the Confucians are ultimately correct. Only with educated citizens, societies can fare through difficult times peaceful. Although Xunzi and Han Feizi both believe humans are inherently evil, Xunzi believes in educating people: “Through steaming and bending, you can make wood straight as a plumb line into a wheel” (Ivanhoe 256). Han Feizi may argue that there may be times when people are so incorrigible that one must spend most of the country’s resources on keeping them in line rather than educating them. Han Feizi’s measures do work for such dire situations, but what if this state become too weak in the future to even reward and punish its citizens effectively?
For example, Japan has the lowest and still decreasing (the Japan Times) crime rate among OECD countries (Hauger) and one of the best education systems in the world (the Business Insider). When Japanese local governments became dysfunctional after earthquakes in 2011, there was no looting and victims formed queues when they were receiving supplies (the Week). Not having any occurrences of looting during natural disasters is unimaginable in most countries.
Helping people become capable of acting virtuously out of their own volition should always be the highest priority of the state. Investing in raising virtuous citizens is inevitable for promoting the longevity of a society. When governments start failing, societies must depend on having educated and mature citizens who will behave in an orderly manner even when the state does not force them to. To give up on educating infantile-minded citizens is to not prepare for such emergencies.
Citation
Britannica, The Editors of Encyclopaedia. “Legalism.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 12 Feb. 2019, www.britannica.com/topic/Legalism.
Grant, Ruth Weissbourd. Strings Attached: Untangling the Ethics of Incentives. Russell Sage Foundation, 2014.
Staff, The Week. “Why Is There No Looting in Japan?” Image, The Week, 15 Mar. 2011, theweek.com/articles/486403/why-there-no-looting-japan.
Author, No. “Japan’s Crime Rate Hits Record Low as Number of Thefts Plummets.” The Japan Times, www.japantimes.co.jp/news/2018/01/18/national/crime-legal/japans-crime-rate-hits-record-low-number-thefts-plummets/.
Reischer, Erica. “The Dangers of Using a Sticker Chart to Teach Kids Good Behavior.” The Atlantic, Atlantic Media Company, 22 Feb. 2016, www.theatlantic.com/health/archive/2016/02/perils-of-sticker-charts/470160/.
Jackson, Abby. “The Latest Ranking of Top Countries in Math, Reading, and Science Is out – and the US Didn’t Crack the Top 10.” Business Insider, Business Insider, 6 Dec. 2016, www.businessinsider.com/pisa-worldwide-ranking-of-math-science-reading-skills-2016-12.
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