Selections from Han Fei Tzu with commentaries by Wing Tsit Chan.
The dominant systems of learning of our time are Confucianism and Moism… Both Confucius and Mo Tzu transmitted the doctrines of (sage emperors) Yao and Shun. Although they differed in what they accepted or rejected, they each claimed to represent the true teachings of Yao and Shun. Now Yao and Shun cannot come to life again. Who is going to determine the truth of Confucianism or Moism? It has been more than seven hundred years from the Yin and Chou times, and more than two thousand years from the times of Yao and Shun. If we are unable to determine the truth of Confucianism or Moism and yet wish to determine the doctrines of Yao and Shun of three thousand years ago, I believe it is impossible to be sure of anything. To be sure of anything without corroborating evidence is stupidity, and to base one's argument on anything about which one cannot be sure is perjury. Therefore those who openly base their arguments on the authority of the ancient kinds and who are dogmatically certain of Yao and Shun are men either of stupidity or perjury. Such learning, characterized by stupidity and perjury, and such an unrefined and conflicting [doctrine] practiced [by the Confucianists and Mohists] are unacceptable to an enlightened ruler…
The severe household has no fierce slaves, but it is the affectionate mother who has spoiled sons. From this I know that awe-inspiring power can prohibit violence and that virtue and kindness are insufficient to end disorder. When the sage rules the state, he does not depend on people to do good for him, but utilizes their inability to do wrong. If he depends on people to do good for him, we cannot even count ten within that state, but if he utilizes the people's inability to do wrong, the whole country may be regulated. A ruler makes use of the majority and neglects the minority, and so he does not devote himself to virtue but to law.
If we had to depend on an arrow being absolutely straight by nature, there would be no arrow in a hundred generations. If we had to depend on a piece of wood being perfectly round by nature, there would not be any wheel in a thousand generations. There is not one naturally straight arrow or naturally round piece of wood in a hundred generations, and yet in every generation people ride carriages and shoot birds. Why? Because of the application of the methods of straightening and bending. Although there is a naturally round piece of wood [once in a hundred generations] which does not depend on any straightening or bending, the skilled workman does not value it. Why? Because it is not just one person who wishes to ride and not just one shot that the archer wishes to shoot. Similarly, the enlightened ruler does not value people who are naturally good and who do not depend on reward and punishment. Why? Because the laws of the state must not be neglected and government is not for only one man. Therefore the ruler who has the technique does not follow the good that happens by chance but practices the way of necessity. (Han Fei Tzu, ch. 50)
In the necessity of straightening and bending, note the similarity to Hsun Tzu. The theory of the originally evil nature of man is a basic assumption of the Legalists. But whereas the straightening and bending in Hsun Tzu consist of ceremonies and music, education and the rectification of names, those o the Legalists consist in reward and punishment. Hsun Tzu had a firm faith in man's moral reform, but the Legalists had no such faith. Although both Han Fei and Li Ssu were pupils of Hsun Tzu, master and pupils were utterly different in their attitudes toward man as a moral being. It is misleading, at least, to say, as Fung does, that Han Fei Tzu based his doctrines on the teachings of Hsun Tzu.
There are four things that enable the enlightened ruler to achieve accomplishments and establish fame; namely, timeliness of the seasons, the hearts of the people, skill and talents, and position of power. Without the timeliness of the seasons, even the Yaos cannot grow a single ear of grain in the winter. Acting against the sentiment of the people, even Meng Pen and Hsia Yu (famous men of great strength) could not make them exhaust their efforts. Therefore with timeliness of the seasons, the grains will grow of themselves. If the ruler has won the hearts of the people, they will exhort themselves without being pressed. If skill and talents are utilized, results will be quickly achieved without any haste. If one occupies a position of power, his fame will be achieved without pushing forward. Like water flowing and like a boat floating, the ruler follows the course of Nature and enforces an infinite number of commands. Therefore he is called an enlightened ruler. (Ch. 28)
Of all the ideas of the Legalists, perhaps the most philosophical is that of following Nature, which was derived from Taoists. The famous historian Ssu-ma Ch'ien is correct in saying that Han Fei Tzu's doctrines can be traced to Lao Tzu. Han Fei Tzu commented and elaborated on the Lao Tzu.
The Taoist ideal of taking no action (wu-wei) had a strong appeal to Legalists because if laws worked effectively at all times, there would be no need for any actual government. The various Taoist tactics, such as withdrawing before advancing, must have impressed the Legalists as clever techniques. And Chuang Tzu's advice to respond to different situations in different ways must also have been attractive to them. These were certainly some of the reasons why Legalists did not attack the Taoists while they bitterly attacked the Confucians and the Mohists. But it must be remembered that the differences between Taoism and Legalism far outweight their similarity, which is both apparent and remote, to say the least. Control, violence, superiority of the state, and so forth are entirely incompatible with Taoism.
The questioner asks, "Of the doctrines of the two schools of Shen Pu-hai and Shang Yang, which is of more urgent need to the state?"
I reply: "They cannot be evaluated. A man will die if he does not eat for ten days. He will also die if he wears no clothing during the height of a severe cold spell. If it is asked whether clothing or food is more urgently needed by a man, the reply is that he cannot live without either, for they are both means to preserve life."
Shen Pu-hai advocated statecraft and Shang Yang advocated law. Statecraft involves appointing officials according to their abilities and demanding that actualities correspond to names. It holds the power of life and death and inquires into the ability of all ministers. These are powers held by the ruler. By law is meant statues and orders formulated by government, with punishments which will surely impress the hearts of the people. Rewards are there for those who obey the law and punishments are to be imposed on those who violate orders. These are things the ministers must follow. On the higher level, if the ruler has no statecraft, he will be ruined. On the lower level, if the ministers are without laws, they will become rebellious. Neither of these can be dispensed with. They are both means of emperors and kings. (ch. 43)
The important thing for the ruler is either laws or statecraft. A law is that which is enacted into the statute books, kept in government offices, and proclaimed to the people. Statecraft is that which is harbored in the ruler's own mind so as to fit all situations and control all ministers. Therefore for law there is nothing better than publicity, whereas in statecraft, secrecy is desired. (Ch. 38)
The means by which the enlightened ruler controls his ministers are none other than the two handles. The two handles are punishment and kindness (te). What do we mean by punishment and kindness? To execute is called punishment and to offer congratulations or rewards is called kindness. Ministers are afraid of execution and punishment but look upon congratulations and rewards as advantages. Therefore, if a ruler himself applies punishment and kindness, all ministers will fear his power and turn to the advantages. As to treacherous ministers, they are different. They would get [the handle of punishment] from the ruler [through flattery and so forth] and punish those whom they hate and get [the handle of kindness] from the ruler and reward those whom they love. If the ruler does not see to it that the power of reward and punishment proceeds from himself but instead leaves it to his ministers to apply reward and punishment, then everyone in the state will fear the ministers and slight the ruler, turn to them and get away from the ruler. This is the trouble of the ruler who loses the handles of punishment and kindness.
For the tiger is able to the subdue the dog because of its claws and fangs. If the tiger abandons its claws and fangs and lets the dog use them, it will be subdued by the dog. Similarly, the ruler controls his ministers through punishment and kindness. If the ruler abandons his punishment and kindness and lets his ministers use them, he will be controlled by the ministers….
Confucius was not aware of the "Two handles" of the government. But whereas Confucius put virtue ahead of punishment, the Legalists put punishment ahead of virtue. In fact, virtue in the true sense of the word is rejected by the Legalists, for te as used here by Han Fei Tzu no longer denotes moral virtue but merely kindness in the sense of rewards and favors. Even these are to be bestowed with an ulterior motive.
Whenever a ruler wants to suppress treachery, he must examine the correspondence between actuality and names. Actuality and names refer to the minster's words and deeds. When a minister presents his words, the ruler assigns him a task in accordance with his words and demands accomplishments specifically from that work. If the results correspond to the task and the task to the words, he should be rewarded. If the accomplishments do not correspond to the task or the task not to the words, he will be punished. If the minister's words are small and his accomplishments are big, he will also be punished. It is not that the ruler is not pleased with big accomplishments but he considers the failure of the big accomplishments to correspond to the words worse than the big accomplishments themselves. Therefore he is to be punished… (ch. 7)
Like practically all ancient Chinese schools, the Legalists emphasized the theory of the correspondence of names and actualities. But while the Confucianists stressed the ethical and social meaning of the theory and the Logicians stressed the logical aspect, the Legalists were interested in it primarily for the purpose of political control. With them the theory is neither ethical nor logical but a technique for regimentation.
Indeed customs differ between the past and the present. Old and new things are to be applied differently. To try and govern the people of a chaotic age with benevolent and lenient masters is like to drive wild horses without whips or reins. This is the trouble of the lack of wisdom.
At present the Confucianists and the Mohists all praise the ancient kings for their universal love for the whole world, which means that they regarded the people as parents [regard their children]. How do we know this to be the case? Because they say, "When the minister of justice carries out an execution, the ruler will stop having music" and that "when the sovereign gets the report of a capital punishment, he sheds tears." These are their praises of ancient kings. Now, to hold that rulers and ministers act toward each other like father and son and consequently there will necessarily be orderly government, is to imply that there are no disorderly fathers or sons. According to human nature, none are more affectionate than parents who love all children, and yet not all children are necessarily orderly. Although the parents' love is deep, why should they cease to be disorderly? Now the love of ancient kings for their people could not have surpassed that of parents for their children. Since children do [not] necessarily cease to be disorderly, then why should the people be orderly? Furthermore, if the ruler sheds tears when punishment is carried out according to law, that is a way to show humanity but not the way to conduct a government. For it is humanity that causes one to shed tears and wish for no punishment, but it is law that punishments cannot be avoided. Ancient kings relied on laws and paid no heed to tears. It is clear that humanity is not adequate for government.
Moreover, people are submissive to power and few of them can be influenced by the doctrines of righteousness.