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

4. Influence of the School of Law

We have seen how the School of Law developed under the stress of the struggle for existence of the contending states. The law, which it proclaimed, was one which destroyed the privileges of feudalism, aimed at centralization and created power for the state. It was anti-cultural and anti-moral, because it was on traditional culture and morality that the position of the noble classes was based and from which they took their standards of conduct. This conception of law was enriched by the more truly philosophical tendencies of the age, which insisted that name and reality should correspond, that rights and duties should be defined, and it received more depth from the Taoist conception of governing without actual interference. Just as the Confucianists claimed for li the authority of antiquity, so did the jurists gradually for their principle of law, at the same time, however, maintaining that different conditions demanded different laws.

They had the unusual chance that for a time their main principles were adopted by the state of Ch’in. By strong centralization, efficient military organization, land-reform, replacement of feudalism by a well-disciplined bureaucracy, p.125 and a far-sighted policy, did it succeed in conquering the whole Empire. In a cultural respect Ch’in was a backward country, more than half “barbarian” in origin. Hsün -tzu, who had travelled there, on being asked what he had seen, said that the people were simple, that there was little music, that clothing was not very refined, and that the officials were feared, and that it was regrettable that there were practically no scholars (502). Elsewhere he says that the people of Ch’in are wanting in the observance of the right conduct between father and son, husband and wife, because they are remiss in observing the rules of proper conduct (li) and righteousness (i) (503).

That in such a country an anti-cultural doctrine easily prevailed is not surprising. We have seen how in the Book of Lord Shang different “lice” are enumerated, and it is of particular interest to notice in this list the Odes and the History, those two pets of the Confucian school. A tradition, recorded in Han Fei-tzu (504), says, that the Lord of Shang taught Duke Hsiao “to burn the Odes and History”. Too much reliance cannot of course be placed on this tradition, but we may assume as certain that a strong opposition to the study of these books existed in the circles influenced by the Law School. Han Fei-tzu is very explicit on this point. In one of his most important chapters he says (505):

« Therefore in a state of an intelligent ruler, there is no literature of books and bamboo tablets, but the law is the only doctrine; there p.126 are no sayings of former Kings, but the officials are the only models.

Now this becomes of enthralling interest, when we remember that the First Emperor, Ch’in Shih -huang-ti, read and appreciated the chapter in which such words occur. For Ssu-ma Ch’ien records that, upon reading the sections Ku fen and Wu-tu (506) (which is that just mentioned), Shihhuang exclaimed: — Oh, could I only meet this man; with him I could even go to death without regret ! (507)

This leaves no doubt but that it was the anti-cultural teaching of the School of Law, which had prepared the mind of Ch’in Shih -huang-ti for the deed by which he incurred the hatred of all later generations: the Burning of the Books in 213. Li Ssu, in advising him to this action, merely put into practice what the Law School had been teaching for decades, and he found a willing ear in his master, who, no less than the mighty Corsican to whom he is often compared, detested “tous ces idéologues”.

The doom of the Law School was sealed with the fall of the short-lived Ch’in dynasty, with which it had been so closely affiliated. This did not mean that its influence came to an end. For the institutions of the Ch’in dynasty, formed by the Law School, profoundly influenced those of the Han.

Right at the beginning we read that Hsiao Ho, the great Councillor of Liu Pang, who became the first Emperor of the Han dynasty, as soon as he had occupied the capital of the Ch’in, took special care to preserve the maps and laws (508). We know, too, that he was particularly interested p.127 in the Fa-ching, in 6 sections, which had been composed by the same Li K’uei, the Minister of the Marquis Wen of the state of Wei (424-387), whom we have already met in connection with his economic calculations (509). To this law, the oldest Chinese law of which the memory has been transmitted, and which evidently formed part. of the code of the Ch’in, he added three sections, called Shih-lü.. Minister Shu-sun T’ung, who had also drawn up a Court ceremonial for the first Han Emperor (510), added 18 sections to this. Finally 27 sections from the Yüeh-kung-lü, by Chang T’ang, Minister of Justice, who was notorious for his severity (511), and 6 sections from the Ch’ao -lü, by Chao Yü, another statesman of the time of Wu-ti, were added to all this about the year 119 B.C., and this collection of 60 sections together formed the Han-lü, the Code of the Han dynasty. In the second century A.D. Ma Jung and Cheng Hsüan (512) wrote their commentaries on this code (513). It was unfortunately lost before the sixth century. In view, however, of the strong sense of tradition which the Chinese have always shown in their institutions, it is not unreasonable to suppose, that through indirect channels, part of it found its way into the codes of following dynasties. In any case it helped to form the mind of the Chinese in judicial matters.

p.128 So the Han dynasty owed much to the work of the Law School. But it was natural, that after the radicalism of the Ch’in d ynasty, a period of reaction should set in. The Han dynasty profited by the abolition of the feudal system, carried through by Ch’in’s energy, but once its power was firmly established, the great stress was gone in which the Warring States had continually lived.

Liu Pang’s saying, that on horse back he had conquered the Empire, and on horseback he proposed to hold it, proved false. More was needed than brute strength. The aim had been reached, the world was united under one sway; the ideals set by the Law School had outlived themselves. Once more there was room for the activities of the scholars who were interested in cultural and moral life. The Confucian tradition of the identity of natural and moral law, in which the person of the Son of Heaven played so great a part, acquired a new significance. Strengthened by the radical reforms which Ch’in had effected, the Han saw in the Confucian doctrine a powerful means for placing the authority of the Emperor on a strong moral basis, without immediately running the dangers which had ruined the Chou house. Encouragement was soon given to the rediscovery of the ancient books, and that movement began, which has for ever marked Chinese civilization with the stamp of antiquity, and has enthroned the Confucian tradition as the authority for all ages..

Thus, while profiting from its work, China has rejected the doctrines of the Law School. The gulf between law and ethics, created by the Law School, was bridged by again restricting law to merely penal law, containing sanctions on the observance of the recognized rites and customs. Law became again firmly p.129 embedded in ethics; it never acquired authority as an independently regulating norm of conduct. Down to the most modern times measures in imperial mandates were justified by invoking the natural moral law; the standard of conduct was li, not fa, the state-law. The crude attempts of the School of Law to regulate life by man-made law has scared the Chinese mind away from attempts in that direction, even from codification of the existing customary law, from any other point of view than that of the penal. The Jurists wanted to make law, without any touch with the people’s sense of right and wrong, into a dead mechanism, which worked automatically like a compass or a pair of scales. They ruled out entirely the source of law, which lies in the development of life itself. Hsün-tzu has very well drawn attention to this mistake. He says:

« If there are laws, but they are not discussed, then those cases, for which the law does not provide, will certainly be treated wrongly (514).

Law can never be complete and should be supplemented by the standards which live in the people. This last truth, so long forgotten in the western conception of law, when the Juristenrecht prevailed, has always been alive in China: It has led to the other extreme of making law but a reflex of natural, customary law, without any regularizing force of its own. It is not understood that a thing may be right or wrong, merely because it is allowed or forbidden by the government; everything is judged according to the intrinsic moral value which it has, measured by the supposedly-known natural law.

p.130 Government measures are therefore obeyed, in so far as they correspond with this popular sense of rightness, not merely because it is positive law. Therefore innovations, which are not consecrated by custom, are ignored. This is one of the great problems which modern China has to face. In a modern state, with highly complicated economical and social conditions, the old conception of law is ill-fitted. It is necessary again to create respect for the law, because it is law. This long-forgotten message of the School of Law has acquired a new actuality. A study of their doctrines, with all their one-sidedness, has therefore even more value than a purely historical one: it may help to give the Chinese of to-day a deeper understanding of the great problem of the sovereignty of law, with which they are confronted. * * *