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

2. The Original Ideas of Shang-tzu

Let us now first examine the political conditions in which the ideas of the School of Law developed. Its rise falls entirely within the fourth and third centuries B.C., in the important period known as that of the Warring States. These times were exceedingly troubled. The power of the Son of Heaven, the King of Chou, had become entirely nominal. The feudal lords behaved like independent princes, even going so far as to assume the title of king. The various states were engaged in incessant warfare and small states were constantly being annexed by powerful neighbours. Even the fate of big and once powerful countries was not secure: an important state p.76 like Chin, which for a time had held supremacy over all others, had come to ruin and had been divided, in 376, into the three states of Han, Wei, and Chao. It seemed impossible to reach a political equilibrium. Truly the time-honoured philosophy of the “Ancient Kings”, who had been able to pacify the whole empire, no longer seemed to hold good. Conditions had changed too much from those of antiquity; men were perhaps less good than they had been, and the need was felt of a system of practical, realistic politics. 

In such a world the ill-success is very clear of a man like Mencius. Mencius was the dignified champion of tradition in this world of changing values. In one important point he had compromised with the existing state of affairs: whereas Confucius had still regarded the King of Chou as the only legitimate ruler, and had condemned all usurpation of royal power by the feudal lords, even Mencius had accepted the fact that the Chou house had lost all real power, and he was willing to recognize any ruler as supreme lord who proved himself worthy of the government over the empire. The necessary qualities which such a ruler should have, were, however, in Mencius opinion, moral virtues. This doomed him to ill-success, for what the princes desired was, on the contrary, power and profit. Very clearly is shown the divergence of ideas between Mencius and the ruling powers of his day, in the opening phrase of the conversation with King Hui, which I have mentioned (346): 

— “Venerable Sir”, the King greeted him, “since you have not counted a thousand miles too far to come here, may I suppose that you also have p.77 something with which you may profit my kingdom ?

Mencius replied: — Why must Your Majesty necessarily use this word ‘profit’ ?

What I also have, are only these two topics: benevolence and righteousness, and nothing else.

King Hui, with his long and bitter experience of real politics, may have smiled at these words. 

For indeed, a system of politics for the feudal lords had of necessity to be very different from that required by the Son of Heaven: The latter’s interest was bound up with the maintenance of the immemorial customs which had come down from antiquity and upon which his own position rested. He reigned over the T’ien-hsia, “What -is-under-heaven”, by virtue of his heavenly mandate, that is, his rule comprised the entire civilized and known world, and he reigned in accordance with the Tao, the Way of Heaven. He was the direct descendant of Shang-ti, the Emperor-on-High (347) and King by right of natural law, by which he had been set up as guardian over the moral values which emanated from it. His was the care of the observance of the traditional li, the rites, the customs, the right behaviour, the entire complex of cultural accomplishments. By himself meticulously observing the numerous rules and taboos which dominated the life of a king and which played their necessary part in the heavenly ordinance and in the order of the Universe, he was able to exercise a transforming influence on the world and to secure the essential harmony between worldly affairs p.78 and the Way of Heaven, thus bringing about peace and prosperity for all. 

The Empire, under the rule of the King, was not a thing created by men; it existed by the same natural necessity as did the human family, and it was governed by the same natural law; from which all moral law was derived. In both public and private life the same standards held good, the one being merely an expansion of the other. Moral virtue, inherent in man, was the basis of all conduct in both spheres of activity, and, like the father in the family, the ruler punished all deviation from the natural standard for people’s behaviour: 

Thus the Empire was not a separate organism, serving purposes of its own, but was merely an organized human society, following the law of Heaven like individual men; it was a social and religious, not a political, entity. 

The Son of Heaven delegated his power over the T’ien-hsia to members of the great families by a religious ceremony, which constituted investiture: he handed to them a clod of earth taken from the Altar of the Soil (348). The feudal lords governed in his name and by his authority; they had no sacred position of their own. However, as the royal power weakened, especially from the end of the eighth century, great power was concentrated in the hands of some of them. They formed leagues, of which the most powerful was the head. But they were always anxious to obtain the royal sanction on their actions and had themselves appointed as Pa, “Lords Protector”. So the wars which they waged for p.79 self-aggrandisement were carried on under the guise of being in reality the wars of the Son of Heaven. War was originally the punishment of rebels by the Son of Heaven, it was his ultima ratio to recall a refractory rebel to his duty, as the term for such wars itself testifies (349). The powerful Pa became, as it were, the executioners for the King, his right arm. Down to practically the end of the Chou dynasty this need of royal sanction was felt; we have seen that Duke Hsiao of Ch’in thought it worth his while to obtain an appointment as Po after he had de facto established his supremacy over the other feudal lords in 343. 

However, these sanctions had become more and more a mockery. The royal power continued to shrivel up, and with the advent of the period of the Warring States none of the feudal lords was powerful enough to uphold a semblance of central authority. Several states contested with each other for the supremacy, in never-ending conflict. From the moment that the feudal rulers began themselves to adopt the title of King, the fiction of unity of All-under-Heaven was lost (350). The usurped title showed their ambition to acquire supremacy over the world, and instead of sanctioning their wars of aggrandisement any longer by the semblance of upholding the authority of the reigning Son of Heaven, they did so by the usurpation of the very title which betokened supremacy and entitled to homage from all the other lords. In the course p.80 of the fourth century about seven different feudal lords took the title one after another and conflict between their rival ambitions was inevitable. It was, between them, a constant life and death struggle. Their wars, however, could no longer have even the appearance of punitive expeditions; they became contests for power, with the definite imperialistic end in view of attaining the supreme Kingship. These states, having practically abandoned their fealty to the Overlord, became by the very nature of things militant; war became a necessity instead of a punitive measure, and the kuo, or feudal state, becoming independent, was entirely conceived under a military aspect. 

So real, concrete power is the thing these rulers are, above all, interested in. Power becomes the new source of their authority. They have little use for tradition; they feel themselves hampered in their career by old customs and immemorial institutions, by privileges of the noble classes, which are almost insurmountable. All these things belonged to the old order which was passing, and inevitably we find strong statesmen, as Shang Yang is said to have been, engaged in curtailing the privileges of the nobles (351). With the example of the disintegration of the Chou house before his eyes, and seeing how Chin had fallen to pieces because it had not succeeded in curbing the power of the noble families, an intelligent statesman could not but aim at the centralization p.81 of power in the hands of the ruler. Moreover, the code of conduct of the patricians ultimately recognized the Son of Heaven as the highest authority. It was imperative to replace this by the authority of the ruler of the state. They should be made to obey his will. Instead of drifting along the old ways, new systems, new methods of government had to be created. The old customs and rites, which were based on natural law, were replaced by laws, made by men. 

Law, having been applied theoretically only in order to enforce the observance of the standards set by natural moral law, now became the instrument for enforcing the standard set up by the state. Here came a clash between law and moral tradition. Never had this idea of law anything to do with the codification of the conceptions of justice living in the hearts of the people; it was merely penal laws and institutions, deemed expedient for the government’s centralizing and imperiali stic purposes; it was the expression of the state’s own growing self -consciousness. It is very remarkable that, when we find the necessity for publishing the laws urged, it is not, as elsewhere, an expression of the popular wish to safeguard the people’s rights and privileges for the future; on the contrary, it is the government itself that desires their publication as a safeguard of its own power, as it expects that the laws will be better observed, if people know exactly what punishments the non-observance will entail. Consequently, to have a deterrent effect, the laws have to be severe. 

In trying to reconstruct what the necessities of the times seem to have required, I have already entered upon a discussion of the ideas of the Book of Lord Shang. For indeed, p.82 in its oldest part (352), the Book faces these fundamental problems, with a rare consistency. In extremely brief and sententious phrases, the unknown author expresses ideas, which must have been, more or less clearly, in the minds of many ambitious statesmen of his day, and follows up to their extreme consequences the principles which they applied. 

Starting from the conception that the ultimate aim of a state must be the conquest of the whole Empire, the Book speaks of the means of organizing the state for that purpose only. How can there be effected, in the first place, the centralization of power and the curtailment of the hampering privileges of the powerful families, the prevention of local fights and brigandage ? This is a fundamental point. It is therefore very much concerned with the prevention of any rise of influence in the hands of the subjects. The state and the people become two antagonistic factors. On the one hand the state should be made rich and strong, but on the other hand the utmost care should be taken for the people, as such, to remain weak and poor and entirely dependent on the state. 

Then only can they be of use to the state, then only can the army be strong, and its obedience assured. This is meant by the curious expressions which serve as the titles of two separate paragraphs: “Elimination of Strength” (353) and “Weakening the People” (354). « If the people are stronger than the government, the state is weak; if the government is stronger than the people, the army is strong. » (355) 

Rewards and punishments are the means by which this p.83 dependence is effected. These two should control entirely the position of the people. They are only given for real merit or demerit, and there are only two kinds of employment which can give any claim to rewards, viz. agriculture and warfare. On these two the existence of the state depends, and as the people are naturally averse to being engaged in two such hard occupations, the judicious distribution of rewards and punishments should stimulate them in their pursuit. They should be constantly employed in either one of these; and, as war is even more hateful to the people than agriculture, ordinary conditions should be made so hard for them, that they look upon war as a welcome release from their toil and as a good opportunity for earning rewards. Then they will fight with all their energy; they will « gain ten points for every one that it undertakes » (356). The army should shrink from no dangers; if it dares to perform what the enemy dares not, it wins and the state will become strong (357). Even fearful people will be made brave by a right system of penalties and rewards (358). In order to prevent people from escaping their duties, all people should be registered (359). 

It is essential that no rewards in the form of ranks, etc., should be acquired by any other means than by merit in these two fields. Only this gate to riches and honour should be “opened”; all other gates should be “closed”, “debarred” (360). Thus rewards and punishments are “unified”, or “m ade uniform”, that is, given according to one standard only, and the people will have “uniformity of purpose”, or will be p.84 “concentrated” on one thing only, i.e. agriculture and war (361). Care should be taken that rewards are given sparsely: “one reward against nine punishments” (362), and that punishments are made severe: “light offences should be regarded as serious” (363), for this will prevent the evil from developing. The very severity of the penalties will make rewards the more valued, and the lightness of rewards will make penalties even more terrifying (364). Prevention is better than cure: the people should be governed while they are in a state of order and one should not wait till they have come into a state of disorder (365). The deterrent effects of severe penalties will be such, that penalties become unnecessary, and thus “by means of punishments punishments will be abolished”; on the other hand, mild punishments, which allow minor offences to escape unnoticed, will allow crime to develop and thus the frequent use of punishments will become necessary. This system of punishments “will bring about punishments” (366). 

How is crime to be discovered ? If virtuous men are employed in the government; the wicked people will easily deceive them. Therefore it is necessary that the wicked should govern the virtuous (367). Fear alone can keep the people from transgressing the law, and thus it is true that “virtue has its origin in punishments” (368). 

This “virtue” is, however, not “goodness”. It is merely obedience to the law, as fixed by the state. It has nothing to p.85 do with morality. For, indeed, Shang-tzu is completely and consciously amoral. His great fear is that the people should become interested in the traditional virtues, and thereby set up other standards of conduct than those established by the law. In the most contemptuous terms he speaks of these other virtues. He describes them as  “licence” or “lice”, which I have rendered by “parasites”. Different groups of these are mentioned. Probably the oldest list is: Care for old age, living on others (without employment), beauty, love, ambition, and virtuous conduct (369). Another group contains: the Odes and History, rites, music, filial piety, brotherly duty, virtue, moral culture (370); and yet another has: the Odes and History, rites and music, virtue and the cultivation thereof, benevolence and integrity, sophistry and intelligence (371). In the longest list of all, which is certainly of later date and where not less than sixteen characteristics are given, to those already enumerated in, the second group are added: sincerity and faith, chastity and integrity, benevolence and righteousness, criticism of the army, and being ashamed to fight (372). If the people cultivate these virtues, they become entirely useless for the state, “the ruler will have no one whom he can employ for defence or warfare” and, if a country is governed by means of these, “it will be dismembered as soon as an enemy approaches, and, even if no enemy approaches, it will be poor” (373). 

“When a country is in peril and the ruler in anxiety, it is of no avail for the settling of this danger for professional talkers to form battalions” (374), and it is these talkers, these itinerant scholars, who are interested in moral problems p.86 and distract the minds of the people from the one thing they should be interested in, that is in agriculture and warfare (375). 

Single-minded concentration on these occupations preserves the people’s natural simplicity, p’u (376). Simplicity and ignorance are the real virtues of the people: No education and no culture whatever should they have, and therefore they should be kept poor. On the one hand the poor should be encouraged to till the land so that they become rich, but on the other hand the rich should not be allowed to remain rich, so as to prevent them from becoming lazy and addicted to the “lice”. If one understands “how to make the poor rich and the rich poor”, one will become strong (377). Strength should be “produced” for the benefit of the state, but, in order to prevent the people from becoming strong in themselves, strength should also be “reduced”, that is, the people should be employed in more warfare. A state which neglects to do this, carries on a suicidal policy, and brings the “poison” of cultural pursuits into its own territory; whereas a state which knows how to “reduce " its strength will be able to attack others and to carry the “poison” into the enemy’s territory (378). 

The riches which accrue to the state, should be kept within the country and should be stored in the granaries. There should be no “outlets”, through which the profit disappears (379). Shang-tzu goes so far as to say that import of products means strength, and export means weakness (380). He is opposed p.87 to the use of money. « Money kills grain; and grain kills money », so all efforts must be directed towards the production of grain and not of money (381). Trade should be prohibited and merchants hampered as much as possible (382). 

The fact that the rules for rewards and punishments are perfectly clear and definite, will make it easy for the people to know how to behave. They themselves will be able to judge between guilt and innocence. « If ten hamlets (383) are the unit for making judgments, there will be weakness; whereas when five hamlets are the unit for making judgments, there will be strength; if it is the family that gives judgments, there will be abundance » (384). And: « If the order of the country depends on the judgments of the family, it attains supremacy; if it depends on the judgments of the officials, it becomes only strong; if it depends on the judgments of the prince, it becomes weak (385). » That is, the law should, so to speak, apply itself and not require the constant interference of the ruler (386). If the law is clear and simple, and rank and office are only given p.88 according to merit, « the law will be eliminated by means of the law », that is, it will make itself superfluous (387). 

So we find that, by concentration on war and agriculture, by implicit obedience to the law, and by the prohibition of all cultural pursuits, the government is absolute master; it “unifies” and “consolidates” (388) the people, and the state will not only become powerful, but will attain supremacy, or, in other words, will establish its authority over the whole empire. 

This is, in a few words, the teaching of the oldest part of the Book of Lord Shang. Its ideas are crude and formidable enough. Not often in the history of thought have such principles been enunciated with such terrible simplicity, grim force, and brutal one-sidedness. The mind which first conceived these ideas could only move along one track; it was bent upon the attainment of one ideal only, willingly and consciously did it sacrifice all else to this one aim, and there is something of the terrible grandeur of the forces of nature in the crude sentences, which in their endless repetitiousness are as crushing as sledge-hammers. 

It will be noticed that the background of these ideas is Taoistic. At first glance nothing could be further removed from Taoistic ideals of non-activity and non-interference, than this philosophy of power and warfare. Yet punishments and laws are merely a means towards an end; in ideal government they are no longer necessary, they are “eliminated”; and things will govern themselves. The strong anticultural tendency is also entirely in keeping with Taoistic tenets, and p.89 the natural simplicity, p’u, of the people, which should be preserved, is one of the key-words of Taoism. 

The law, fa, in this system does not comprise much more than the rules for rewards and punishments. Therein it is still very close to the old idea of law, which was that of criminal law only. Whereas, however, this criminal law was only an aid to secure the maintenance of li, the right conduct, prescribed by natural law, fa, this system of rewards and punishments, for merits and demerits towards the state, now replaces li, and itself becomes the right standard of conduct. The two meanings, in which the word fa is used, i.e. (1) model or standard, and (2) law, penal law, coalesce completely. The law of the state becomes the norm of conduct, and this law is divested of its moral character (389). Here is a complete breach between law and ethics. 

Yet, however crude this law might be, it is law. There is definiteness, equal application to all and publicity. These are indeed new principles. The nobles had so far been exempt from the application of penal law, according to the old rule, recorded in the Li-chi (390), that « punishments do not extend up to the great officers ». They had been the class that were entirely governed by li in its strict sense, which did not reach down to the common people (391). The equality, now established, reminds one again of the strong hand of a statesman like Shang Yang, supposed to have abolished the privileges of the nobles. 

With regard to the publicity and definiteness of the law, it should be noticed that this government, which despised p.90 all moral virtue for the people, claims one virtue for itself, in which it expects everybody to believe: good faith (392), that is, in the bestowing of promised rewards and the application of punishments. It makes both public, that everyone may know. 

This is by no means a self-evident principle. It is reported that the code of laws which the old statesman, Tzu Ch’an, drew up, and which he had engraved on a sacrificial cauldron, was very unpopular, because it was thought, that the people would be more difficult to govern and become more quarrelsome, should they know the laws (393). Confucius himself is said to have criticized a similar action, as it would lower the respect and authority of the higher classes (394). Now this principle of publicity and invariability is recognized by the state to be in its own interest because of its deterrent effect. So, though the law may be arbitrarily fixed, once it has been published, it has to be enforced. There is, therefore, no room for the arbitrary conduct of the princes (395). 

I am here supplementing the older and very defective paragraphs somewhat from other arts, which are in this respect, I believe, entirely in keeping with the original ideas. Now brief though the mode of expression may be, these certainly do not lack logic and system. They strike me as being the theoretical and one-sided elaboration of ideas, born of the practical necessities of the age. In political, economic, and ethical respects they seem to form a unity. The Han p.91 history says (396), that the doctrine of the School of Law originated with administrative officials, and I believe that is right. It may be repeated once more, that strong administrators such as Shang Yang is supposed to have been, in desiring to increase the power of the state, exercised through officials chosen for their merit, came into conflict with the established privileges of the noble classes. Further, the patricians lived on the land, insufficiently cultivated by the peasants, and they profited from the trade and arts, which enabled many of them to live in luxury in expensive establishments. For a statesman in an agricultural country like China, it was, in the first place, necessary to make a better use of the land and to increase the produce, and it may well be true that this was done by giving the land free to everybody, thus at the same time weakening the position of the noble classes (397). They were governed by li, the code of etiquette and moral conduct, handed down from antiquity, and they carefully preserved these traditions. The law could scarcely touch them (398). So the political and economic necessity led to a violent opposition against all li or traditional standards of conduct, together with a rejection of trade and arts, that served cultural pursuits and strengthened the position of the patricians. Confucianists like Mencius had been constantly upholding the old order of things; their ideal was intensely aristocratic (399). One should p.92 remember that Mencius defended the old ching system of agriculture, that he pleaded for free trade (400), and relied on the personal virtue, based on the old standards, of the noble classes and the ruler to govern a state well. Thus practical politicians, in this period, had to enter into conflict with the Confucian scholars and their ideal of culture and virtue. 

It is impossible to say in how far these ideas in the oldest parts of Shang-tzu have any direct connection with Shang Yang. From the above it will, however, be clear that they are the natural outcome of the conditions of the time. In a less pronounced form Shang Yang, if he was at all what he is said to have been, must have acted along these lines. We know that he was successful; we also know that a similar policy was later pursued by Ch’in; there is therefore nothing improbable in the tradition, which calls him the initiator of this policy. This does, of course, not mean that he consciously professed the whole system, which I have outlined, with all its extravagances.