As a consequence of this philosophy of history, Legalism is very adept at coopting other philosophical and political ideas, redefining itself in various historical and social circumstances. The great crisis of Legalism was the fall of the Qin Empire after only fifteen years. Many assume that Legalism, at that point, was discredited and replaced in Han political thought with Confucianism. But this is a distorted reading of history. The major architect of a new Legalism was a scholar named Jia Yi (200–168 BC), who wrote a very influential essay called “Criticizing Qin.” His critique was not that the use of law or administrative bureaucracy was wrong. It was that the law as conceived by Qin Legalists had been amoral. He argued that if Qin had enforced the social values that the Confucians were advocating, without a return to ancient feudal rule, the Qin would have been far less harsh in its methods and might have lasted much longer. Subsequent Han scholars then forged a political synthesis that blended Legalist methods of statecraft with Confucian moral education. This synthesis continued through later dynasties and found one of its most influential expressions in the Tang dynasty Legal Code. The Preface to the Code asserts that legal punishments were used by the sage kings of antiquity and that no state may dispense with them. Listed among the “ten abominations” that warrant punishment is the failure to practice filial piety and righteousness, two of the cardinal Confucian virtues.
In its modern form, the Legalist philosophy of history is the intellectual ground upon which the CCP is presently redefining itself as a socialist party with Chinese characteristics, a marvelously open term that allows for the flexible adaptation of capitalist economics, the formation of a legal and constitutional system that contrasts sharply with the Enlightenment ideas that underlie Western notions of these same terms, and the promotion in recent years of Confucian moral values. In a move strongly reminiscent of the Han Emperor Wu and the Ming Emperor Taizu, the language of Jia Yi and the Tang Code are clearly echoed in the Fourth Plenum Communiqué’s admonition to “strengthen the combination of governing the country by law and by virtue.”
THE SECOND guiding philosophical idea of Legalism concerns human nature. Confucius argued that human goodness is achieved by moral self-cultivation, internal transformation of the mind in the context of family and social tradition. The Legalist Shang Yang maintained that “the reality of human beings is that they have things they love and things they hate; therefore they can be governed.” Human behavior is to be transformed not by inner cultivation but by external manipulation by political authority of love and fear, pleasure and pain. These are the political tools of the ruler, not restrictions on the ruler himself. Law is applied first to the king’s own ministers. The Qin Legal Code was devoted largely to laws that govern the conduct of government officials. Han Fei argued that the monarch must exercise his powers of reward and punishment himself—he must not delegate such authority to his ministers because they will end up ruling over the monarch. Thus, one of the most important functions of Chinese law is to give the ruler the instruments of power to keep his ministers loyal to him and to control the corrosive effects of corruption. The exercise of such personal power leads to two results. The first is the suppression of factional powers with economic resources that can challenge or diminish the power of the ruler. The second is the elimination of corrupt officials who enrich themselves and stir the resentments of the people, thereby destroying the loyalty of the population to the state and leading to rebellion and the possible overthrow of the king.
Modern Legalism opposes analogous views of human nature that prevailed during the high tide of Maoist Communism. For all the vitriol poured over Confucius in the early years of the PRC, Maoism and Confucianism had one thing in common. Both argued for the internal transformation of the individual—Confucius through moral cultivation in culture, and Mao through ideological indoctrination designed to purge the individual of bourgeois vestiges, a process that would bring about the utopian Communist state. The turn toward the suppression of foreign and subversive political ideas under Xi Jinping is not, as many have argued in the press, a return to Maoist methods. Rather, it is a reversion to perennial patterns of Chinese political culture, a return to Legalist methods that emphasize control of human behavior by means of reward and punishment administered by the state. These are the exact motives and reasoning behind the anticorruption campaign and the related move toward the promotion of clear and impersonal laws as a method of control over party and government officials. According to the official communiqué of the Fourth Plenum in 2014, the purpose of the reforms is to shape a complete system of legal standards to govern the party itself, strengthen government administration over the people and the economy according to the rule of law and promote the modernization of the legal system of the entire polity. This is the context for the anticorruption drive, which has had the dual effect of uprooting factionalism in the party and moving toward the objective of an efficient, rationally ordered state capable of implementing the economic reforms required by present conditions, a result that both Shang Yang and Han Fei would applaud.
THE MANIPULATION of rewards and punishments alone is not sufficient for the necessary control of both government officials and the population. This mode of rule must work in concert with a second essential measure: the elimination of political ideas and groups of people not consistent with Legalist methods and objectives. Shang Yang advocated purging the political system of all superfluous activities that divert individuals from the pursuit of agriculture and war, the government’s core objectives. This applies particularly to the fostering of literary and philosophical pursuits; the cultivation of the Confucian practices of the rites and music; and the promotion of virtues such as filial and fraternal piety. Should these be the main pursuits of the government, the result would be defeat in war and poverty in peace. Chief among the five “vermin” that Han Fei identified as forces that undermine the state are scholars and speechmakers. They are insidious in that they introduce a multiplicity of subversive ideas into political discourse and promote the notion that the path to social advancement is through the clever use of arguments. Both undermine the ruler’s ability to maintain single-minded devotion to the state and to productive work that advances its interests.
In his “Chinese Dream” speeches, Xi repeatedly invokes these Legalist doctrines: “Empty talk harms the country, while hard work makes it flourish.” The people should concentrate not on political debate but on the hard work of building a modern economy; and they should enjoy the benefits of the prosperity that economy is meant to deliver. The ideal is the model worker, not the sharp-tongued political orator. This is the reward side of the Legalist mode of statecraft. The punishment side has taken legal form in two internal party documents that have recently come to light: Document No. 9 and Document No. 30. Both represent a modernized version of Han Fei’s “five vermin.” Document No. 30, which has not been leaked, appears to be a development of the policies set forth earlier in Document No. 9, which has become public. It identifies “Seven Un-Discussables” that harm the state because they hinder the unification of thought and are to be targeted for suppression. The document is structured exactly like a Legalist treatise, following closely the literary form of parts of Shang Yang’s Book of Lord Shang. It enumerates the seven pernicious ideas—constitutionalism, universal values, civil society, neoliberalism, press freedom and questioning the socialist nature of the economic reforms—with a comment attached to each that warns of its specific harm to the state. The unifying thread that runs through all of them—eerily similar to the harm of the “five vermin”—is that they introduce a multiplicity of ideas that distract from the national drive toward socialism with Chinese characteristics and undermine the singular authority of the CCP as the unchallenged sovereign.
The new Legalism is not the only current of thought informing Chinese domestic and foreign policies. There are many factional alignments in the party and government, and many strains of thought and tradition coming together to shape the present reality. Moreover, the economic reform program, which is consistent with a modernized Legalist emphasis on building the economic foundations of a strong military state, has opened China to economic and political ideas never dreamed of by the ancient philosophers. What is important to understand about Legalism in the present age is that it will inform the foreign and domestic statecraft of the CCP, shape the definition of what law is and how it will work in Chinese politics, and thus will constrain the scope of how far Chinese political and legal reform can go toward Western-led globalization. It will also, as it has for centuries, provide many of the underlying patterns of thought and practice that will shape fundamentally the Chinese understanding and adaptation of all other political and economic models both of native origin, such as Confucianism, and imported, such as free-market economics. Beijing may speak the modern language of political and diplomatic discourse derived from Western Enlightenment thinkers, but its understanding of those terms will be determined by an interaction between their meanings in the West and their meanings to the Chinese as mediated by an indigenous political culture shaped by centuries of Legalist thought and experience.