THE COMPLETE WORKS OF HAN FEI TZŬ (45): Chap XLIII, Deciding Between Two Legalistic Doctrines

Deciding Between Two Legalistic Doctrines

Some inquirer asked: "Of the teachings of the two authorities, Shên Pu-hai and Kung-sun Yang, which is more urgently needful to the state?"

In reply I said: "It is impossible to compare them. Man, not eating for ten days, would die, and, wearing no clothes in the midst of great cold, would also die. As to which is more urgently needful to man, clothing or eating, it goes without saying that neither can be dispensed with, for both are means to nourish life. Now Shên Pu-hai spoke about the need of tact and Kung-sun Yang insisted on the use of law. Tact is the means whereby to create posts according to responsibilities, hold actual services accountable according to official titles, exercise the power over life and death, and examine the officials’ abilities. It is what the lord of men has in his grip. Law includes mandates and ordinances that are manifest in the official bureaux, penalties that are definite in the mind of the people, rewards that are due to the careful observers of laws, and punishments that are inflicted on the offenders against orders. It is what the subjects and ministers take as model. If the ruler is tactless, delusion will come to the superior; if the subjects and ministers are lawless, disorder will appear among the inferiors. Thus, neither can be dispensed with: both are implements of emperors and kings."

The inquirer next asked: "Why is it that tact without law or law without tact is useless?"

In reply I said: "Shên Pu-hai was assistant to Marquis Chao of Han. Han was one of the states into which Chin had been divided. Before the old laws of Chin had been repealed, the new laws of Han appeared; before the orders of the earlier rulers had been removed, the orders of the later rulers were issued. As Shên Pu-hai neither enforced the laws nor unified the mandates and ordinances, there were many culprits. Thus, whenever old laws and earlier orders produced advantages, they were followed; whenever new laws and later orders produced advantages, they were followed, too. So long as old and new counteracted each other and the earlier and later orders contradicted each other, even though Shên Pu-hai advised Marquis Chao ten times to use tact, yet the wicked ministers still had excuses to twist their words. Therefore, though he counted on Han’s strength of ten thousand chariots, Han failed to attain Hegemony in the course of seventeen years, {Shên Pu-hai was Premier of Han from 351 to 337} which was the calamity of the neglect of law by the officials despite the use of tact by the superior. "Kung-sun Yang, while governing Ch`in, established the system {One failing to denounce anybody else’s crime was punished as if he had committed the crime oneself.} of denunciation and implication and called the real culprit to account; he organized groups of ten and five families and made members of the same group share one another’s crime. Rewards were made liberal and certain; punishments were made severe and definite.

“Consequently, the people exerted their forces laboriously but never stopped, pursued the enemy perilously but never retreated. Therefore, the state became rich and the army strong. However, if he had no tact whereby to detect villainy, by enriching the state and strengthening the army he benefited nobody other than the subsequent ministers. Following the death of Duke Hsiao and Lord Shang and the accession of King Hui to the throne, the law of Ch`in had as yet fallen to the ground, when Chang Yi at the cost of Ch`in’s interest complied with the demands of Han and Wey. Following the death of King Hui and the accession of King Wu to the throne, Kan Mu at the cost of Ch`in’s interest complied with the request of Chou. Following the death of King Wu and the accession of King Chao Hsiang to the throne, Marquis Jang crossed Han and Wey and marched eastward to attack Ch`i, whereas the five years’ campaign gained Ch`in not even one foot of territory but merely secured for him the Fief of T`ao. Again, Marquis Ying attacked Han for eight years only to secure for himself the Fief of Ju-nan. Thenceforward, those who have served Ch`in, have been the same types of men as Ying and Jang. Therefore, whenever the army wins a war, chief vassals are honoured; whenever the state expands its territory, private feuds are created. So long as the sovereign had no tact whereby to detect villainy, even though Lord Shang improved his laws ten times, the ministers in turn utilized the advantages.

“Therefore, though he made use of the resources of strong Ch`in, Ch`in failed to attain the status of an empire in the course of several decades, {Kung-sun Yang went to Ch`in in 361b.c., the first year of the reign of Duke Hsiao. His petition for radical changes in the law was accepted in 359 b.c. when Duke Hsiao trusted him with all state affairs. Upon the death of Duke Hsiao in 335 b.c. Lord Shang had already governed Ch`in for over twenty years, which period of time was thereby referred to in the text. } which was the calamity of the sovereign’s tactlessness despite the officials’ strict observance of law."

The inquirer again asked: "Suppose the ruler applies the tact of Shên Tzŭ and the officials observe the law of Lord Shang. Would everything work out right?"

In reply I said: "Shên Tzŭ was not thorough in the doctrine of tact, Lord Shang was not thorough in the doctrine of law.

"According to Shên Tzŭ, no official should override his commission and utter uncalled-for sentiments despite his extra knowledge. Not to override one’s commission means to keep to his duty. To utter uncalled-for sentiments despite one’s extra knowledge, is called a fault. After all, it is only when the lord of men sees things with the aid of everybody’s eyes in the country that in visual power he is surpassed by none; it is only when he hears things with the aid of everybody’s ears in the country that in auditory power he is surpassed by none. Now that those who know do not speak, where is the lord of men going to find aid?

"According to the Law of Lord Shang, `who cuts off one head in war is promoted by one grade in rank, and, if he wants to become an official, is given an office worth fifty piculs; who cuts off two heads in war is promoted by two grades in rank, and, if he wants to become an official, is given an office worth one hundred piculs’. Thus, promotion in office and rank is equivalent to the merit in head-cutting. Now supposing there were a law requesting those who cut off heads in war to become physicians and carpenters, then neither houses would be built nor would diseases be cured. Indeed, carpenters have manual skill; physicians know how to prepare drugs; but, if men are ordered to take up these professions on account of their merits in beheading, then they do not have the required abilities. Now, governmental service requires wisdom and talent in particular; beheading in war is a matter or courage and strength. To fillgovernmental offices which require wisdom and talent with possessors of courage and strength, is the same as to order men of merit in beheading to become physicians and carpenters.

“Hence my saying: The two philosophers in the doctrines of law and tact were not thoroughly perfect."

(All Chinese characters in the notes are blank in the source text and, so, those notes containing such blanks have been either deleted or re-worded in the posting here. -- The New Legalist editor.)