[I N T R O D U C T I O N: 
CHAPTER III:  The Book of Lord Shang and the School of Law]

3. Further Ideas of the Book of Lord Shang (2)

To return now to the School of Law, it is of the utmost importance that laws and regulations, weights and measures, which were established in order to restrain people, should be preserved. One ought not to turn one’s back on these standards and try to judge for oneself, any more than a merchant would try to do without scales in weighing things. « Only a Yao would be able to judge knowledge and ability, worth or unworth without a model, but the world does not exist exclusively of Yaos (438) !  

This is a very central point in the teaching of the School of Law. Even supposing that a sage is able to act rightly under all circumstances, the average man, and even the average ruler, is certainly not a sage. « (Sages like) Yao p.108 and Shun as well as (wicked men like) Chieh and Chou appear only once in a thousand generations (439).  

One should therefore not depend on the very rare presence of a sage for having good government, but one should rely on such measures and conditions, that even mediocre people can achieve good results. A passage from Han Fei-tzu illustrates this very clearly (440). « I do not think it right to say (441) that good horses and a solid carriage, driven by slaves, will be the ridicule of people, but, driven by Wang Liang (442), will cover a thousand li a day. For example, if you wait for a man from Yueh, who is good at swimming in the sea, to rescue a drowning man in the Middle Kingdom — the man from Yueh may be a good swimmer but the drowning person will not be saved. In the same way, if you wait for Wang Liang of old to drive the horses of to-day, it will be the same story as that of the man from Yueh who would rescue that drowning person; it is also clear that it is impossible. But if good horses and a solid carriage are placed in readiness in relays of fifty li, and you make a mediocre coachman drive them, it will be possible to get them to drive fast and far, and you will cover a distance of a thousand li in a few days. Why should one then wait for a Wang Liang of old ?  

Fortuitous results, which may happen occasionally in defiance of all law, have no lasting value, and do not prove that law and rule are unnecessary. « If you sharpen an arrow and shoot it off blindly, its point may occasionally hit an p.109 autumn hair (443), but one cannot therefore be said to be a good shot, as there is no constant rule (that this will happen). If one sets up a mark of five inches and shoots at a distance of ten paces, unless one is a (shot like) I or P’eng Meng (444), it is not certain that one will hit it; that is the constant rule. Therefore, if there is a constant rule, the fact that an I or a P’eng Meng hits a mark of five inches is accounted an achievement, but, if there is no fixed rule, the fact that a blind shot hits an autumn hair is accounted clumsiness (445).  

A right system is therefore more reliable than chance-success or the presence of a specially gifted man. And even the latter, how does he obtain his success: by his personality or by his methods ? In Kuan-tzu it is said: 

« Though one may have a clever eye and a practised hand, one cannot draw a square or a circle so well as clumsy compasses and a square may do it. So a clever man is able to make a pair of compasses and a square, but he cannot, while disregarding these, correctly draw a circle or a square. Even a Sage, though he may make laws, cannot, while disregarding the laws, govern a state (446).  

There has been preserved, in Yin Wen-tzu (447), a vivid little conversation between P’eng Meng, his student T’ien P’ien, p.110 and Sung Hsing (448), all scholars of the Academy, at the gate of Chi, of which the beginning is interesting in this connection. 

« T’ien -tzu sat reading the Shu-ching and said: — The period of Yao was one of great peace ! Sung-tzu said: — Was this due to the administration of the Sage ? P’eng Meng, who stood at one side, b reaking (449) in, replied: — This was due to the administration of a sage law, not to that of a sage man.  

This reply is very typical of the Law School. Confucius had still held the old belief in the supernatural influence of the king over the world — his virtue would be able to transform all without exception (450). — He who governs by means of his virtue is like the North Pole Star, which keeps its position while all the other stars turn towards it (451).  

Mencius no longer believed in this supernatural influence, but for him, the principles of jen and i, altruistic virtue and the sense of moral duties, which were practised by the Sages, were able to transform mankind (452). He held the optimistic belief that all men were susceptible to moral influence: 

« All men may become a Yao or a Shun (453). The secret of good government lay, apart from certain economical considerations to ensure the people’s livelihood (454), entirely within the ethical sphere: morality had to be cultivated. Even Hsan-tzu, although he was pessimistic about human nature, expected everything p.111 from moral culture, which could be effected with, the aid of the li, the rules for right conduct, and law alone had no charm for him. 

« The law cannot exist by itself.... The superior man is the source of the law. Therefore, if there is a superior man, though the laws may be sparse, they will be sufficient to embrace everything. If, however, there is no superior man, then, though the laws may be complete, one will fail in the right application of earlier and later things, it will be impossible to meet the changes of the times, and there will be reason enough for disorder (455).  

The School of Law is very pessimistic in this respect. Morality, it says, cannot be taught. « The benevolent (456) may be benevolent towards others, but he cannot cause others to be benevolent; the righteous may love others, but he cannot cause others to love. From this I know that benevolence and righteousness are not sufficient for governing the empire. A sage has a nature that insists on good faith, and he also has a law, by which he compels the whole empire to have good faith (457). 

« Li Chu saw an autumn hair at a distance of more than 100 paces, but he could not transfer his sharp vision to others; Wu Huo was able to lift a weight of 1,000 chün, but he could not transfer his great strength to others. And, indeed, sages cannot transfer to others the personality and nature that are inherent in them (458).  

Thus the School of Law rejects all confidence in the fortuitous success, which may occasionally be obtained by special men and it regards all hope of good government by p.112 moral regeneration as futile. It aims at government by average rulers over people, who are inclined to do evil. Therefore it needs more than merely the restraining and guiding influence of li, the rules of good behaviour, which presuppose the moral example of the ruler; but it needs the law with its compelling power. Thus one will be independent of the quality of the ruler and be able to cope with the refractory nature of the people. 

« Generally a ruler of men does not, in virtuous conduct, exceed other men, nor does he do so in knowledge, nor does he surpass others in courage and strength; yet the people, though they may have sages and wise men, dare not plot against him; though they may have courage, dare not kill him; though they are numerous, dare not overrule their lord; though the people may reach a number of many tens of thousands, if heavy rewards are set before them, they dare not contest for them; if, penalties are applied, they dare not resent them. The reason is that there is law (459). 2So the law is not concerned with the virtuous few, who may practise virtue for virtue’s sake: « Seek-transgressors and do not seek the virtuous (460). « The system of good government is to neglect the virtuous and to abolish the wise (461).  

It is only interested in the wicked, who form the majority, and who need to be compelled into the paths leading to good results. Exceptions do not interest a ruler: « There may be one case in ten millions, where the directing guidance of the law is not needed, and yet it is correct in every thing. Therefore, the p.113 Sage governs the Empire for the ten million cases (462). 

« If we should use arrows, which are straight of themselves, there would not be an arrow in a hundred years; if we should only use pieces of wood, which are round of themselves, in a thousand years there would not be a wheel. In a hundred years there is not one arrow that is straight of itself, nor a wheel that is round of itself, how is it then that every one in the world drives in carriages and shoots birds ? It is the result of applying the art of stretching and curbing (463).  

The natural consequence is to make the law severe. « In strictly managed households, fierce rebels will not appear, but a compassionate mother has spoilt sons; from this I know that by severity violence may be prevented, but that virtue and kindness are not effective in causing disorder to cease (464), says Han Fei-tzu. Here these portions of the Book of Lord Shang connect up with the older parts:  

« Therefore if you govern by punishments, the people will fear; being fearful, they will not commit villainies; there being no villainies, people will be happy in what they enjoy. If, however, you teach people by righteousness, they will be lax; if they are lax, there will be disorder; if there is disorder, the people will suffer from what they dislike (465).  

Han Fei-tzu expresses himself very strongly on this point. « Now take a boy who is a bad character. His parents may get angry with him, he does not change. His neighbours may reprove him, it does not have any effect on him. His p.114 masters may moralize to him, he does not reform. All the excellent devices of which love of parents, conduct of neighbours, and wisdom of teachers may dispose, are applied to him, but they remain totally without avail, and not a hair on his shins will change. But when the district official sends his soldiers and in the name of the law searches for wicked individuals, then he becomes afraid, changes his principles, and reforms his conduct. So the love of parents is not sufficient to teach a son morality, but the severe punishments of the officials are needed. People become naturally spoiled by love, but obedient to severity (466).  

Or again: « The love of a mother for her son, is twice as great as that of a father, but for getting orders obeyed by a son, a father is worth ten mothers. The officials have no love for the people, but for getting their orders obeyed by the people they are worth ten thousand fathers and mothers. A father and mother accumulate their love and yet their orders are fruitless; officials apply severity and the people obey their orders (467).  

The law thus being the means to combat wickedness, all private standards of morality become objectionable, as they necessarily must differ from the one standard set up by the state. Here lies the conflict between law and ethics. We have seen before (468) how this belongs to the old stock of ideas in the Book of Lord Shang. Nowhere is this antagonism more clearly expressed than in Han Fei-tzu, where the argument is particularly directed against the Confucian conception of morality. 

« p.115 In the state of Ch’u ther e was a certain upright man, who, when his father had stolen a sheep, denounced him to the official. But the Prime Minister condemned him to death, judging that he had acted in an upright manner towards his prince, but crookedly towards his father, and that in return, therefore, he should be punished. Looking at it from this point of view, the subject that is upright towards a prince is a wicked son to his father (469). 

« There was a man of Lu, who followed his prince to the war and who in three battles ran away thrice. When Chung-ni (Confucius) asked him the reason for that, he replied: — I have an old father, and when I die there is nobody to take care of him.  

Chung-ni regarded this as an act of filial piety, brought him to the fore and presented him to the prince. Looking at it from this point of view, a father’s filial son as a subject turns his back on the prince (470).  

Here is the most complete clash between civic duties and personal morality. For the School of Law there can be no doubt which of these should have precedence.  

Such complete rupture with traditional ethical concepts shows a different attitude towards the past. And indeed, though it is frequently stated that the Sages of old-instituted the “weights and measures, statutes and laws”, which should p.116 be followed, yet it is one of the marked characteristics of this School that it refuses to be bound by traditional laws. Again and again it is repeated that laws should fit the times, and that different periods require different laws. The argument in the great discussion in the first paragraph turns on this point, and the Book never tires of showing that in antiquity not always the same laws and customs have prevailed. So for example at the beginning of paragraph 18 (471): 

« Of old, in the times of the Great and Illustrious Ruler, people found their livelihood by cutting trees and slaying animals; the population was sparse and trees and animals numerous. In the times of Huang-ti, neither young animals nor eggs were taken... These measures were not the same, but that they both attained supremacy was due to the fact that the times in which they lived were different. In the times of Shen-nung, men ploughed to obtain food and women wove to obtain clothing. Without the application of punishments or governmental measures, order prevailed, without the raising of mailed soldiers, he reigned supreme. After  Shen-nung had died, the weak were conquered by force and the few oppressed by the many. Therefore Huang-ti created the ideas of prince and minister, of superior and inferior, the rites between father and son, between elder and younger brother, the union between husband and wife and between consort and mate. At home, he applied sword and saw and abroad he used mailed soldiers; this was because the times had changed. Looking at it from this point of view, Shen nung is not higher than Huang-ti, but the reason that his name was honoured was because he suited his time.  

p.117 In another place (472) is shown that in Shen-nung’s time people were ignorant and therefore he obtained the leadership by means of his knowledge; in the times of Ch’eng T’ang and Wu -wang, however, when people were clever, these could only succeed by means of force. It would be unwise, when the times are like those of T’ang and Wu, to follow the methods of Shen -nung. « 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 (473). 

In the excellent 49th paragraph of Han Fei-tzu this idea is explained at length and is illustrated by an amusing little anecdote (474): « There was a man of Sung (475) who tilled his field. Now in his field stood the stem of a tree, and once a hare in full course rushed against that stem, broke its neck and died. Thereupon the man left his plough and stood waiting at that tree in the hope that he would catch another hare. But he never caught another hare and he was ridiculed by the people of Sung. If, however, you want to rule the people of to-day with the methods of government of the early kings you do exactly the same thing as that man who waited by his tree. 

It was in itself not a new idea that laws, rites and customs were subject to change — Mo Ti especially had shown with great force the relative values of all customs. « Formerly there was east of Yueh the country of Chen-mu (476). When there an eldest son was born, he was cut into pieces and eaten up, and it was said that this benefited the younger brothers. If a grandfather died, the grandmother was carried off on the back and left, p.118 for it was said that one could not live together with the wife of a ghost. … South of Ch’u was the country of the Yen people. If their relations died, they let the flesh rot and threw it away, and then they buried the bones, thus fulfilling the duties of a filial son. West of Ch’in was the country of I -ch’ü. If there a relation died, fuel was piled up and he was cremated; when the smoke rose up, it was said that he ascended afar, and after this, one had fulfilled the duties of a filial son … (477)  

Now for Mo Ti the authority of the. past and the tradition of the Sages had not the same value as for the Confucianists. For him rites in themselves were not so important, as they were with these latter. He was interested in the meaning of the rites, he regarded things from a personal, not from a social point of view, and the will of Heaven was his ultimate guide for action.  

Within the Confucian School, however, it was now also admitted that rites were liable to change. Hsün-tzu was so much a child of his time that he no longer believed in the harmony between natural and moral law. For him, human nature being bad, all moral standards set up to guide it, being essentially created by men, were “artefact” (478). Moral authority was external.  

But he exercised his own discrimination in choosing his authorities; instead of the former Sages, he preferred the later Sages, who, as he said, were better known. 

Hsün-tzu did not admit in so many words, that the teaching of the later Sages was better fitted for the age, but he had certainly been influenced by the frankly utilitarian point of p.119 view of the School of Law. This asked only what was practical, and in spite of the great importance it attached to stability of the law and its ultimate foundation in antiquity, it defended the right of every ruler to alter the law so as to meet the needs of his own time. Here lay, as we have seen, its very origin. This is, of course, in direct antagonism with the Confucian idea that only a Sage could make laws.  

It is, however, essential that once the law has been fixed, it should not be altered arbitrarily by the ruler to suit his own taste. Rewards and punishments should be promptly given only to those who really deserved them, and appointments only to men of merit. This is again connected with the conception of the Terminologists, that names and things should correspond to each other. On no account should the ruler in his decision be influenced by presents (479). 

« The early Kings in governing the state, let the law select people, and did not choose themselves; they let the law weigh merit, and did not measure it themselves (480).  

And again: « An intelligent ruler does not reward those who have no merit, though he loves them; he does not punish those who have no guilt, though he hates them (481). « An intelligent prince knows that the people think of the ruler (as an example); therefore he establishes laws to govern himself, he fixes modes to correct himself (482).  

And, as it is said in the Book: « The one who gains the empire is he who regards it as his first duty to gain himself; the one who p.120 succeeds in conquering a strong enemy is he who regards it as his first duty to conquer himself (483). « An intelligent ruler is cautious with regard to laws and regulations; he does not hearken to words which are not in accordance with the law; he does not exalt actions which are not in accordance with the law; he does not perform deeds which are not in accordance with the law (484).  

The philosophers of the School of Law knew very well that it is one thing to have laws and another to secure their application, and, as we have seen, much of their effort is spent on this problem. They did not tire of seeking an answer to Hsün-tzu’s taunt, that « there has been bad government under good laws, but from ancient times to the present there has never been known to be bad government under a superior man (485).  

Is there really no remedy to the situation that « all states have laws, but there are no laws that guarantee that the laws are practised ? (486)  

Strict rules for rewards and punishments, “system”, “method”, “conditions”, all these serve as auxiliaries to the authority of the law. Now how should this be put into practice in the organization of the country ?  

An important principle was discovered: that of mutual control. If the reports about Shang Yang deserve confidence, he had instituted the system of mutual control even for the people (487) by organizing them into small groups, the members of which were responsible for one another. Thus the right p.121 “conditions” were created « in which even a man like Chih does no wrong (488).  

The secret of this system is that people’s interests are made different, for man’s interest is his guiding motive. « The people’s attitude towards profit is just like the tendency of water to flow downwards, without preference for any of the four sides. The people are only interested in obtaining profit and it depends on what their superiors encourage, what they will do (489). 

« In a condition of complete good government, husband and wife and friends cannot abandon each other’s evil, cover up wrong-doing and not cause harm to relatives, nor can the men from the people mutually conceal each other from their superiors and government servants. That is because, although their affairs are connected, their interests are different (490).  

Truly an opposite state of affairs from that commended by Confucius ! Now this same system should be applied to the whole official organization. It is not sufficient to appoint “assistants and controllers” who are to prevent the officials from making profit, because these “assistants and controllers” themselves desire to make profit (491): 

« their affairs are the same and they belong to one body. Now those whose affairs are the same and who belong to one body, cannot control one another. But by making their interests different and the disadvantages dissimilar, the early Kings created guarantees (492). 

« The early Kings made it a principle that those, whose business was connected, should have different interests (493).  

The development of this idea of making the interests of the officials different, in order better to guarantee the application p.122 of the law, leads to a division of the officials’ competencies. It is not yet the “trias politica” which is discovered, but, if I may so call it, a “duas politica”. A very remarkable system is set forth in the last paragraph of the Book, making a clear distinction between executive officials and “law-officials”, that is, officials whose task it is to maintain the law.  

This paragraph shows a very real advance in the ideas of the Law School in more than one respect. It is concerned with the fixing of rights and duties, with the terminology, which we have discussed before, and therefore speaks of law in its wider aspect. It realizes its almost divine origin and it recognizes the transmitted laws and terminology of the ancients as authoritative. 

« Should they not be accepted as authoritative and should people discuss them according to ideas of their own mind, then until their death they will not succeed in understanding the terminology and its meaning (494).  

These laws have been handed down in writing and special law-officials should study them. The law-officials have been set up by the Sages and « should be authoritative in the Empire, in order to define everybody’s rights and duties, so that these being definite, the very crafty would become faithful and trustworthy, and the people would all become honest and guileless, each one restraining himself (495).  

It is no longer the ruler himself, who is identified with the maintenance of the law, nor is it a dead book or a tradition, but there are living interpreters of the ancient writ, who, moreover, are in close touch with the every-day practice of government. For they have to interpret the laws to the people and to the officials and have to give their opinion, whenever it is desired, p.123 about the legality or otherwise of administrative actions or people’s conduct (496). Their interpretations of the law are put on record and “on the death of the officer, affairs should be transacted according to these files (497).” So there is continuity and progression in legislature, there is real jurisprudence. Careful regulations are made for the preservation in archives of all the laws, and heavy punishments are fixed for illegal alterations made in the text of the law.  

Special students are set to study the contents of the law, so that at the death of law-officials there are always competent men for law-interpretation (498). The result of this system will be that « there shall be no one among the government officials and people of the Empire, who does not know the law, and as the officials are clearly aware that the people know the laws and mandates, they dare not treat the people contrary to the law, nor dare the people transgress the law, as they would come into conflict with the law-officers (499). 

The law will then be understood by everybody, stupid and wise alike, and the people will be « prevented from falling into dangerous pitfalls. « So the fact that when the Sages established the Empire, there were no victims of capital punishment, was not because capital punishment did not exist, but because the laws, which were applied, were clear and easy to understand …. They knew that if the ten thousands of people all knew what to avoid and what to strive for, they would avoid misfortune and strive for happiness, and so restrain themselves (500).  

From the crude ideas of the older part of the Book to these conceptions is a great step. It is very doubtful whether such p.124 a scheme as here propounded has ever had practical application; it is possible, however, that the institution of the censorate, which is not unlike that of the law-officers — with the difference, that it is the rites, rather than the law, which they are called upon to uphold — owes some of its features to the ideas here emitted for the first time (501).