[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 (1)

In discussing the ideas of the Book of Lord Shang in the previous paragraph, I have purposely confined myself to what seem to be the oldest elements in it. It should, however, not be supposed that the conceptions which I have explained are not found in other parts of the Book than those from which quotations were given. On the contrary; the Book is full of repetitions; many of these leading ideas are expressed over and over again. Especially the necessity of severe p.93 punishments, of training for war and agriculture, of the limitation of rewards for merit (401) in these two spheres of activity is repeatedly urged in several other paragraphs, as well as the evil of cultural and moral pursuits. To give a summary of these utterances, which are sometimes very striking, would only lead us to the same repetitiousness from which the Book suffers, and is unnecessary here. We may refer to the text of the Book which follows in translation (402).  

Apart from these ideas there are, however, several others in the Book, which certainly do not belong to the same system of thought, for, as we shall show in Chap. IV, the Book is far from being a unity. It is not always possible to draw a sharp line of demarcation; sometimes they are evidently a later development, which however fits in very well with the original scheme; sometimes they clash. They form part of the general current of thought which is designated as the School of Law and they find parallels in other authors. I shall therefore discuss them here together with these; sometimes this will lead us back again to the narrow system which we just studied, but more often it will show us the School of Law in a new light. The origin of some of these ideas lies certainly not with administrators; they are the outcome of that interchange of thought between men of different views of which some instances have been given (403). With a man of Shang Yang’s p.94 type they have nothing to do at all, except that he may have given the great impetus to the idea of law.  

This leads us first to the discussion of another keyword, which is found in the writings of some of the legalists, and also occurs, though sparsely, in the Book, viz. “methods”, shu. 

If we may believe Han Fei-tzu, who, it should be remembered, lived less than a century later in a country that had constant relations with Ch’in, it was very typical of Shang Yang that he attached so much importance especially to the idea of law. He contrasts in a section, that is generally admitted to be genuine (404), Shang Yang and Shen Pu-hai. The first, he says, knew only “law”, the second only “political methods”. The first, he explains, is “that laws and mandates are manifest in the official bureaux, that the people have the conviction that punishments are definite, that rewards are based on a careful observance of the law, and that punishments are inflicted on those who infringe the law: it gives guidance to the officials”. And as to the second, political methods: “to confer office according to responsibility; to demand real service corresponding with the title carried, to sway authority over life and death, to test the capacity of the officials: it is that of which the ruler disposes”.  

Han Fei-tzu then proceeds to show that both “law” and “methods” are necessary: 

« Shen Pu-hai was the aid of the Marquis Chao of Han, which was one of the states into which Chin had been divided. Now the old laws of Chin had not yet been repealed, when the new laws of Han appeared on top of these; the orders of the former princes had not yet p.95 come to the point where they were all carried out, when the new orders of the later princes were issued. As Shen Pu-hai did not take control over the laws, and did not unify the orders, crimes were many. For, whenever there was advantage in the old laws and the earlier orders, these were followed, and whenever there was advantage in the new laws and the later orders, these were followed. As old and new clashed with each other, and the earlier and later orders contradicted each other, though Shen Pu-hai might have caused the Marquis Chao ten times to use ‘methods’, yet the wicked ministers would have found opportunities to twist his words. Therefore, though it could rely on the strength of ten thousand chariots, Han’s ill -success in not attaining, in the course of seventeen years, leadership or supremacy, was due to the fact that, although the ruler used ‘methods’, ‘law’ was not diligently observed by the officials.  

Kung-sun Yang in ruling Ch’in established the system, that denunciation of crime was obligatory, and that (for the non-denunciation) one was punished as if one had committed the crime oneself; he organized groups of ten and five and held them all responsible for each other’s crimes. Rewards were made liberal and were faithfully carried out, punishments were made severe and definite, consequently the people applied their force and toiled without rest, pursued the enemy and did not shrink from dangers.  

Therefore his state became rich and the army strong. However, not having ‘methods’ whereby to discover crime, with his riches and strength he merely benefited other ministers.  

Then, after having shown that Lord Shang’s successors all to ok large benefits for themselves in all the victories which p.96 they won, he ends by saying: 

« Though the Lord of Shang had improved his laws ten times, the ministers used the benefits acquired for other ends, and by whichever crafty means he strengthened the resources of Ch’in, its ill-success in not attaining in the course of several decades, the emperorship, was due to the fact that, although the laws were diligently observed by the officials, the ruler above did not have method.  

The character of these “political methods” is somewhat further defined in a passage in Yin Wen-tzu, which we shall discuss below in more detail. There it is said (405) that “methods” are something which the prince secretly uses, and in which the subjects should not be initiated. The “methods”, which were used by the ancient emperors and kings, are mentioned as being: benevolence, righteousness, rites, music, terminology, laws, punishments, and rewards (406); so the term seems to indicate the totality of the ruler’s political measures, by which he controls his officials.  

In the sixth paragraph of the present Book of Lord Shang, mention is made of the necessity of the use of “methods”, without, however, being much insisted upon (407).  

There are some other technical terms in the Book which should be studied somewhat closer. Another word shu occurs, meaning number, which acquires the meaning of “statistics”, or “statistical methods”. Already in the oldes t parts of the Book there is a preference for expressing everything in numerical figures: “they will gain ten points p.97 for everyone that it undertakes” (408); “one reward to nine punishments” (409), etc., and in paragraph 4 their importance is touched upon (410). With much more detail the necessity of statistics is explained in paragraph 6, where the importance is argued of making a proper land-survey and of establishing a due proportion between the number of inhabitants and the surface and quality of the land (411). As I have explained in Chapter II, these ideas are connected with those ascribed to Li K’uei, the Councillor of Marquis Wen of Wei (424-387). In paragraph 24 this J. J.-L. DUYVENDAK - The book of Lord Shang 56 idea appears again, but in a much wider and more developed sense, as may be expected in a paragraph which is evidently of later origin. Here it stands for the governmental system, which is based on calculation, one might almost say, the science of government. The text says:  

« The early Kings did not rely on their belief but on their figures .... If, in measuring an abyss, you know that it is a thousand fathoms deep, it is owing to the figures which you find by dropping a string (412).  

It is used in connection with another remarkable word, which it is extremely difficult to render satisfactorily in any translation. This is shih, “conditions, circumstances, influence, power.” Ku an-tzu says: « That whereby a ruler is ruler, is power (shih). (413)  

In Han Fei-tzu we find an interesting utterance of Shen Tao on the necessity of shih, which explains its meaning. This passage (414) runs as follows: 

« Shen-tzu said: — A flying dragon rides on the clouds, and a floating snake travels on the mist; but when the clouds p.98 disperse and the mist lifts, the dragon and the snake are not different from a cricket or an ant; that is, because then they have lost the element on which they rode. If men of talent are subjected by worthless men, it is because their authority is weak and their position low, whereas if the worthless can be subjected by men of talent, it is due to the authority of the latter being strong and their position honoured. Yao as an ordinary citizen was not able to govern three people, whereas Chieh as the Son of Heaven, was able to bring the whole empire into disorder.  

From this I know that circumstances (shih) and position should be relied on, and that talent and wisdom should not be respected. If, a bow being weak, an arrow is yet carried high, it is because it is speeded up by the wind; if, a person being of no worth, yet his orders carry, it is because they are assisted by the masses. When Yao was teaching his own dependents, the people did not listen; but when he was sitting with his face towards the south and was king over the empire, his orders carried, and his interdicts had force. From this I see that talent and wisdom are not sufficient to subdue the masses, but that circumstances and position are able to subject even men of talent.  

I have used the word “circumstances” in my translation, but it is clear that “power” would really express better the sense of wh at is meant. Power, that is, which relies on the general condition and trend of things, as an abstract idea, and well distinguished from brute force. Han Fei-tzu, in discussing these ideas of Shen Tao, warns against the danger, that it is by no means certain that only men like Yao or Shun will obtain this power; in the hands of wicked p.99 individuals it will only make disorder worse, and, as there are more wicked than virtuous people, the chances are that there will be more often disorder than order in the world. In this power, these circumstances, this tendency, rightly understood, there is, according to Han Fei-tzu, something spontaneous, something which men have not in their power to establish, and which enables mediocre men to govern well.  

The illustrations of shih used in paragraph 24 are similar to those given in Han Fei-tzu: a seed riding on the power of the wind, or eyesight being dependent on the circumstance, or the power of the sunlight (415). It is used for the “power ” which enables a ch’i -lin to cover a thousand li a day (416), but also for the “tendency” towards order or disorder in a state (417). Government, it is here (par. 26) said, is only possible when there is this tendency towards order. Also: 

« if conditions (shih) are such that one cannot commit crimes, then even a man like Chih will be trustworthy; but if conditions (shih) are such that it is possible to commit crimes; then even a man like Po I will be mistrustful (418).  

Things, in other words, should be so organized, that there is order without actual interference from the ruler. This again is the Taoistic ideal, and the ruler will be enabled 

« to repose on a rest-couch and listen to the sound of stringed and bamboo instruments, and yet the empire will enjoy order (419).  

In the passage to which I have referred before, where he talks of “methods”, Yin Wen -tzu also speaks of this shih. He treats it from his pronounced Taoistic and terminological p.100 point of view. He says (420): « If the Way (Tao) is not sufficient to govern, methods (shu) are used, if methods are not sufficient to govern, the practice of weighing out things against each other is used (421), if this is not sufficient to govern, the trend of things (shih) is made use of.  

When these are made use of, one returns to a condition where things are weighed out against each other, when this happens, one returns to methods, by the use of methods one returns to law, and by the use of law one returns to the Way (Tao). By the use of Tao the Non-activity, Wu-wei, will be realized and order will be established spontaneously.  

Yin Wen-tzu then, after giving the definition of “methods” which I have quoted above, describes shih as ‘the profitable instrument for the execution of statutes and laws” (422). No more, however, than the subjects should be initiated into the secret “meth ods” should they be allowed to use “the instrument” of power ( shih).  

For Yin Wen-tzu, the best way to secure that the "methods" of a prince are kept secret and that nobody but he himself can dispose of the “power of circumstances” ( shih), is to make terminology correct, so that all distinctions between things, rights and duties are clear. Only when names correspond exactly to the things which they denote, can laws be correct and order be established (423). p.101 It is here that the theoretical speculations on the “meaning of meaning”, which were the fashion in the School of Terminologists (423a), connect up with the more practical side of the School of Law, which simply aimed at the formation of a powerful government. Here were the beginnings of the conception, that law was not merely valuable as an efficient means of government, but that it was an abstract principle valuable in itself. In the present Book of Lord Shang these ideas have also left their traces.  

In paragraph 26 we meet ming in its technical sense of “name, term, appellation, terminology” (424). In human relationships, it is often best rendered by “rights and duties”; applied to questions of property, it acquires the meaning of “legal status”, “legal title”, and used in connection with the law, it means “heading or item of the law” (425). In the illustration of the story of the hare there is shown the importance of fixing the ming “legal title”. So long as a hare runs wild, even sages like Yao and Shun will chase after it, because its legal title is not definite, but as soon as it is for sale on the market, not even a thief will think of taking it away, because its legal title is definite.  

So « if everybody’s rights and duties (ming) are definite, the very crafty will become faithful and trustworthy, and the people will all become honest and guileless, each one restraining himself. For indeed, the defining of everybody’s rights and duties is t he road that leads to orderly government, but the not defining of everybody’s rights and duties is the road that leads to disorder (426). p.102 The paragraphs 7 and 14, although they do not use the word ming, express more or less the same idea, where they speak of making divisions (fen) clear (427).  

The question arises: how, by whom, and why have these divisions been established ? 

« The early kings hung up scales with standard weights, and fixed the length of feet and inches, and to the present day these are followed as models, because their divisions are clear (427a).  

The word, here rendered in its original sense of “model”, is fa, the law. It is clear that here it acquires an entirely different background. From being the arbitrary, but published, will of the ruler, it becomes the almost transcendental legacy of the past. No longer is the ruler himself the source of authority. Law becomes the model, fixed by the Sages, in the beginning of things.  

What do we know about these beginnings ? The seventh paragraph of the Book describes the origin of civilization: from a condition of matriarchate the sense of property developed; this led to a condition of mutual strife, which was restricted by the development of moral virtues. As, however, people became more numerous, there was not sufficient restraint placed on emulation, called forth by the importance attached to ability; so a sage made divisions of land and property, men and women, and in order to maintain these divisions he set up interdicts, officials to enforce them, and a prince to unify the officials. Thus honour and rank began to be prized.  

Paragraph 23 gives another retrospective view: « In p.103 the days of antiquity, before the time when there were princes and ministers, superiors and inferiors, the people were disorderly and were not well administered, and so the sages made a division between the noble and the humble; they regulated tank and position, and established names and appellations in order to distinguish the ideas of prince and minister, of superior and inferior. As the territory was extensive, the people numerous, and all things many, they made a division of five kinds of officials and maintained it. As the people were numerous, wickedness and depravity originated, so they established laws and regulations, and created weights and measures, in order to prohibit them, and in consequence there were the idea of prince and minister, the distinctions between the five kinds of officials and the interdicts of the laws and regulations, to which it was necessary to pay heed (428).  

It is interesting to compare these theories of the origin of society with some other utterances of the same kind. In Kuan-tzu we read (429): « In antiquity, before there was a distinction between prince and minister, superiors and inferiors, and before there was the union of husband and wife, consort and mate, people dwelled like beasts and lived in herds, and attacked each other by means of force.  

Hereupon the clever deceived the stupid, the strong oppressed the weak, and there was no room for old and young, orphaned and lonely people. Therefore clever men made use of the collective force of the masses in order to prohibit oppression, and the result was that the violent people were stopped; for the people’s benefit p.104 they promoted what was profitable and removed what was harmful; they regulated the people’s idea of virtue and the people took them as their masters.... When superiors and inferiors had been established, the people formed an organization, and the state was founded.  

So here there is a bellum omnium in omnes before the organization of society, and as in the system of the English philosopher who coined that phrase, morality begins only at the creation of the state. The first of the quotations from Shang-tzu which I gave, recognizes some restraining influence in that early stage exercised by morality (430), which, however, was not sufficient as people increased. In Han Fei-tzu the cause of strife is specially sought in the fact that people became more numerous, and, in deference to Taoism, an ideal period is supposed to have existed in the halcyon days, when people were still few and there was no struggle for life.  

We read, in paragraph 49 (431): « The men of old did not till the field, but the fruits of plants and trees were sufficient for food. Nor did the women weave, for the furs of birds and animals were enough for clothing. Without working there was enough to live, there were few people and plenty of supplies, and therefore the people did not quarrel. So neither large rewards nor heavy punishments were used, but the people governed themselves. But nowadays people do not consider a family of five children as large, and, each child having again five children, before the death of the grandfather there may be twenty-five grand-children. The result p.105 is that there are many people and few supplies, that one has to work hard for a meagre return. So the people fall to quarrelling and though rewards may be doubled and punishments heaped up, one does not get away from disorder.  

In this view of historical materialism Han Fei-tzu differs from other schools. Mo Ti finds the necessity for the establishing of authorities in the different ideas which people held and which caused moral and intellectual confusion. 

« Of old, when people were first produced, before there were penalties or government, the speech of men had (for each) a different meaning (432); for one man it had one meaning, for two men it had two meanings, and for ten men it had ten meanings. As the number of people became great, the meanings, which the speech uttered by them had, became also great in number. Thus people regarded each his own meaning as right and other people’s meanings as wrong, and therefore in their intercourse they criticized each other. Consequently at home fathers and sons, elder and younger brothers, became angry with each other, were estranged from each other and could not live in harmony, and the people in the world harmed each other like water and fire or poison .... The disorder in the world was like that of birds or beasts. An examination of this disorder in the world showed that it came from not having government-leaders. Therefore the most capable man in the world was chosen and set up as Son of Heaven.... Only the Son of Heaven was able to unify all the meanings in the world, so that the world enjoyed order (433).  

Of the Confucian School it is Hsün-tzu who has given most p.106 thought to the origin of human society. He seeks the causes of human discord, as may be expected, in the moral sphere. 

« Man by birth has desire. When desire is not satisfied, then he cannot be without a seeking for satisfaction. When this seeking for satisfaction is without measure or limit, then there cannot but be contention. When there is contention, there will be disorder; when there is disorder, there will be poverty. The former kings hated this confusion; hence they established the rules of proper conduct (li) and justice (i) in order to set limits to this confusion, to educate and nourish men’s desires, to give opportunity for this seeking for satisfaction, in order that desire should never be exhausted by things, nor should things be curbed by desire; that these two should support each other and develop. This is whence the rules of proper conduct (li) arise (434).  

He regards it as characteristic of man only, that he is able to build a society. This is due to a moral quality, the sense of rights and duties (435), which he alone possesses. 

« Water and fire have essences, but not life; herbs and trees have life, but no knowledge; birds and beasts have knowledge, but no moral sense. Man has an essence, life, knowledge, and in addition has moral sense; hence he is the highest being on earth. His strength is not equal to that of the bull, p.107 his running is not equal to that of the horse; yet the bull and horse are used by him. How is that ? Men are able to form social organizations, the former are not able to form social organizations. How is it that men are able to form social organizations ? Because of their distinctions. How is it that distinctions can be carried out ? Because of moral sense.  

Therefore, having moral sense in making their distinctions, they live in harmony; living in harmony, they are united; being united, they have much strength; having much strength, they are powerful; being powerful, they are the masters of all things (436). So human society, for Hsün-tzu, is formed on a basis of the moral sense for what is right, and regulated by li. He admits the law as a necessary complement, but maintains a natural ethical norm (437).