Fa and Law

--A Critical Examination of the Confucian and Legalist Approaches to Law

Xinzhong Yao

University of Wales, Lampeter


There has recently been a renewed interest in the relationship between fazhi 法治 (rule by law) and dezhi 德治 (rule by moral force) in Mainland China, especially after Jiang Zemin, the President of P.R.C, put forward ‘yi de zhi guo’ 以德治国 (governing the state by means of moral virtues) as one of the Communist Party’s strategies for maintaining the socialist state in a country that is gradually slipping into a capitalist and commercialist society. Some people herald this policy as a new guideline in dealing with the issues of law and order in the process of modernisation, and together with ‘yi fa zhi guo’ 依法治國will undoubtedly accelerate the construction of a modern state with a distinctive Chinese character, while some others argue that it is none other than a remake of ‘lizhi' (rule by rituals), a fundamental Confucian principle in opposition to the Legalist policies of ‘fazhi’, and that it would therefore do nothing but divert the people from establishing a modern society based on the ‘rule of law’.

As political ideologies or guidelines in traditional China, the ‘rule by law’ and the ‘rule by virtue’ laid emphases on 'rule', while taking legal regulations and moral principles merely as the means for ‘ruling’. This understanding and practice characterises a political structure quite different from that on which the 'rule of law' is established. This paper is not, however, intended to go to the details of lizhi and fazhi and their underlying philosophies, but rather to explore how ‘law’ was understood in early China, and to argue that 'de' and 'fa' were theoretically related and were never practically separated throughout the imperial China. In so doing, I shall also critically re-examine some misleading or ambiguous propositions and tentatively draw certain similarities and differences from the Confucian and Legalist approaches to law.

Xing, Fa and Lü

The concept and practices of law can be traced to an early stage of Chinese civilisation. There are a number of root words for ‘law’ in the modern sense, such as Jus and Lex, which refer both to ‘law’ and to ‘right’. When ‘law’ is used in a classical Chinese context, it is most likely a translation of one of the three characters, xing , fa and . A brief examination of the original and extended meanings and implications these three characters acquired in the development of the Chinese understanding of law would help us reconstruct the early Confucian and Legalist conception of law.

Although no evidence yet found in oracle bones inscriptions, there is little doubt that xing was the most important character leading to the conception of law in early China. In bronze inscriptions xing evolved from jing (well) and by adding a radical for knife (dao or    ), jing became xing      and by further adding another element for earth (tu ) it became xing  or      (mould or model). The first xing originally meant ‘military attacking' 征罰 [criminals and rebels] and by extension it came to mean ‘punishing or penalising' 刑罰 [those who have violated the norms], especially when involving corporal punishment (probably with sharp tools such as knives or axes), while the original meaning of the second xing is the mould for casting bronze wares and by extension it gains the meaning of norms and standards.

Fa in bronze inscriptions appears to be            , and was simplified as only during the period of Warring States (475-221 BCE). Scholars disagree in how fa gets its reference to legal codes or legal punishment. According to the interpretation of the Shuowen jiezi 说說文解字 (Explanations of Scripts and Elucidation of Characters, by Xu Shen 許慎, 55?-149 CE), the broad meaning of fa as standards or law may have been derived from the radical ‘water’: ‘Fa means xing, which levels [affairs or persons] like water’. The second opinion is that fa originally meant fei (to abandon, stop or forbid), from which it derives the meanings of legal codes as ‘forbidding regulations’. It is, however, clear that the modern usage of ‘fa’ as universally applicable laws was not prominent in early Zhou vocabulary, and fa gained the meaning of penal law through associating itself with xing; for example, in Shang shu (the Book of History) it is said that ‘Among the people of Meaou, they did not use the power of good, but the restraints of punishment (xing). They made the five punishments engines of oppression, calling them the laws (fa).’

In oracle bones inscriptions, we have found the character , which according to scholars’ opinion originally means ‘ranks, standards and rules’ and by extension it came to mean ‘military disciplines or orders’. From the middle of the fourth century BCE on was gradually used to replace ‘fa’ as a general word for legal codes, and most collections of the instituted regulations afterwards were entitled as ‘ shu’ or the Book of Laws or the Collection of Legal Codes.

All the three characters include in their meanings two levels of understanding of law: the state’s regulations as the standards for society and the legal codes as the means for measuring and punishing crimes. It is clear that in early contexts, the meaning of the first level is taken as the basis of that at the second, and practices at the second are considered to be the social and political application and extension of those at the first. It is in this sense that xing, fa and acquired the forms and contents of a particular kind of institution consisting of several ways by which state power could be organised and exercised, including enforcing regulations and punishments, and effecting administrative and military systems, namely, the laws.

Confucianism and Legalism

Although it was a much later practice to group ru-scholars as ‘rujia’, the family of ru or Confucianism as it is known in the West, and the people who instituted, or wrote about, or advised the ruler on, law as ‘fajia 法家’ the School of Law or Legalism, the division between these two ways of theoretical thinking or orientation in practical politics took place in as early as the Spring and Autumn period (770-476 BCE). The most famous early representatives of Confucianism are Confucius (551-479 BCE), Mengzi 孟子 (371?-289? BCE) and Xunzi 荀子 (310?-219? BCE), and the latter two recognised the first as their forerunner and the Master who had transmitted to them the ancient tradition of li (rites or proper ways of conduct) and yi (rightness or righteousness). Listed under ‘Legalism’ by later historians or cataloguers are such politicians and/or thinkers as Guang Zhong (?-645 BCE), Shang Yang 商鞅(?-338 BC), Shen Dao 慎到(350?-275? BCE), and Han Fei 韓非 (?-233 BCE). The formation of the so-called Legalism followed a route quite different from other ‘schools’, as John Shroyck has clearly explained: ‘The men who composed the School of Law were not united by loyalty to a master, nor by organisation, nor because they were contemporaries, nor did they have the relation of pupils to teacher in the clear-cut way of the Confucians. The list of men included in the group varies, and the classification itself was not made until their epoch had closed.’

The parting ways of these two 'schools' in their approaches to law were often explained in a later age through tracing to their origins and by identifying them with the people who carried out their doctrines. According to the authors of Han shu 漢書 (the History of the Former Han dynasty), Confucianism as a school originated from the officials of education (situ zhi guan 司徒之官), whose responsibilities are such as ‘assisting the ruler of the state, following the laws of yin and yang, and manifesting the values of education and transformation (jiaohua 教化)’; while Legalists ‘originated with administrative officials (liguan 理官), who made promises of rewards trustworthy and penalties definite, in order thereby to give a support to rites and institutions…This is their good side. But when their doctrine was practised by cruel men, they opposed culture, eliminated benevolence and love, relied solely on penalties and law, and wished in this way to bring about order, with the result that cruel harm was done to the nearest relatives, kindness was injured, and for generosity came strictness.’ It is evident from this evaluation that the authors of Han Shu based their criticism of Legalism on certain key Confucian values, and indicated that the unfavourable image of Legalism was mainly due to the bad or cruel character of those who carried out Legalist policies. This passage contains such an implication that if properly practised by virtuous men, the Legalist doctrine would have been beneficial to the state and conducive to the cultivation of virtues.

Confucians and Legalists were nevertheless different in their political philosophies and practices. As far as their approach to political administration is concerned, the differences may be listed as follows: Confucians took the government as a natural process of extension or radiation from personal virtues, a good government as the one in which virtuous persons ruled the state for the people, and the good methods of government as applying moral principles, setting up moral examples and engaging in moral persuasion, while Legalists ‘were primarily interested in the accumulation of power, the subjugation of the individual to the state, uniformity of thought and the use of force’.

Their differences are also clearly demonstrated in their attitudes towards tradition and in the proposed solutions to social problems. Succeeding to the tradition and yet attempting to transform it, Confucians adopted li as the way to the social ideal. Li or rites or codes of conduct or 'custom laws' were the traditional means to regulate human behaviour and human relations in a hierarchical society, where each member of community had his or her own role to play, as delineated by the li: a ruler was to act as a ruler, a minister as a minister, a father as a father, a son as a son, a friend as a friend and so on. At a deeper layer, Confucians stressed that to fulfil one’s responsibilities was the same as to realise one’s potential as a human being and was therefore the sign of a virtuous character. They believed that when all members of a state, especially the rulers and ministers who had a sweeping influence over common people’s way of life like wind over grass, cultivated their characters and behaved virtuously, then, as it was argued, the state would be in harmony and the world in peace. Attempting to break with the tradition which was taken as the cause and source of chaos, disorder and weaknesses, Legalists made use of fa or codified regulations and ‘penal laws’ as the means to establish a society ruled by clearly defined legal codes, enforced by the ruler who was entrusted with the absolute power in determining punishments and rewards. Unlike li which treats each member as an individual and set boundaries for him or her in family, community and society, fa is taken as universal measures, treating all the members of the state equally (the only exception might probably be the ruler according to some leading Legalists), subjecting them to the same measures of punishment and award. Making use of the fear and desires humans are said to have been born with, Legalist policies were instrumental to create a state in which individuals were constantly disciplined as well as stimulated to avoid punishment and to seek benefits. In the end of the period of Warring States (475-221 BCE) Legalists overwhelmed Confucians by establishing, or facilitating to establish, the formidable and ruthless Qin dynasty (221-206 BCE).

The Confucian Approach to Law

Fully realising that a society could not maintain its order simply by tolerance and generousity, Confucius saw the usefulness and to some extent necessity of clearly defined penal codes, and listed the respect for laws as one of the qualities required for honorouble members of the society: ‘A gentleman cherishes a respect for the law (xing), while a small man cherishes generous treatment’ (The Analects, 4: 11). Based on, and arguing for, the claim that humans are born with 'selfish' desires and need to be restrained, Xunzi contrasted the 'orderly government of the sage-kings' in the past with today's chaos and disorder, and stressed that one of the reasons for the current situation was that the laws and standards had been abandoned. As one of the tools for government, law was to measure and punish those who violated social norms. Confucians stressed that legal codes must be clearly defined, and punishments and crimes must be matched, because ‘…when punishments do not fit the crimes, the common people will not know where to put hand and foot’ (The Analects, 13:3), i.e., they would not know what should be done and what must not.

Although appreciating the role of law, Confucians firmly rejected the view that by law itself a peaceful society and a well-managed state could be established. For them, law is only an auxiliary means and its functions and effectiveness depend on more fundamental principles. First, the enforcement of law is subject to the influence of moral virtues. Between the exercises of punishment to restrain the people and the cultivation of virtues or the elevation of rites (including all norms of approved conduct) to lead the people, most Confuicians opted for the latter two as a more effective and efficient way to peace and harmony. The defects of enforcing penal codes on the people as the means for social order were shown in that punishments would not solve the problems of crimes. In their opinion, punishment might be able to create a frightening environment in which individuals did not dare to transgress ‘norms’, but they would do so if they thought they could get away without being caught because there was no sense of shame [of what was wrong] inside them. Confucius thus contrasted regulations and ‘xing’ (legal codes) with ‘de’ (moral force or virtue) and rites, by which he is said to propagate a moralistic strategy of governance: ‘Govern the people with regulations and organize them with penal law (xing), and they will avoid punishments but will be without shame. Govern them with virtue and organize them through the li, and the people will have a sense of shame and moreover will become transformed themselves’ (The Analects, 2:3). In the Xunzi, it is further argued that law must be derived from the principles of li and must be taken as an extension of what li requires, because ‘the rituals are the great basis of law and the foundation of precedents’. Secondly, Confucians argued that to be an effective means to maintain peace and harmony legal punishments must be based on moral training and education. While Confucius stressed the match of punishment and transgression as important to social harmony, he nevertheless pointed out that it would not be possible for the match to be made if the proper performance of rituals and music had not been engaged: ‘…when rites and music do not flourish, punishments will not fit the crimes…’ (The Analects, 13:3). Therefore, punishments can be justified only if they were preconditioned by proper education and guidance with various ethical tools, such as rites, music, moral training and education. To Confucius, crimes as social diseases were products of an immoral society, for which the ruler, rather than the people, should be chiefly held responsible. He therefore strongly condemned the practice of massively executing criminals as the way to reduce crimes and to maintain social order, because for him, ‘To impose the death penalty without first attempting to educate [them] is to be cruel’ (The Analects, 20: 2). Thirdly, virtuous persons are more fundamental than law, and cultivation of one’s own character is more urgent than publicising and enforcing legal codes. Confucians believed that an ideal society is the one in which moral principles rather than legal codes dominate. What Confucius wanted to create is a society in which everyone acts in accordance with moral norms and therefore no legal codes would be needed to solve personal conflict: ‘In hearing litigation, I am not different from any other man. But if you insist on a difference, it is, perhaps, that I try to get the parties not to resort to litigation in the first place’ (The Analects, 12: 11). He expressed a wholehearted agreement with an old saying that after being governed by good rulers for one hundred years, there would be no more cruelty and killing in the state (The Analects, 13:11). Based on the belief in the sweeping power of a moral character, Confucius called for a morally naturalistic approach to governance: A virtuous person who ruled the state would be like the Pole Star to which all stars paid their homage without using any force (The Analects, 2:1). This idea is more clearly argued for in the Xunzi where it is stated that ‘The law cannot exist by itself…The person of virtue is the source of the law. Therefore if there is a person of virtue, though the laws may be sparse, they will be sufficient to embrace everything. If, however, there is no person of virtue, then though the laws may be complete, one will fail in the right application of earlier and later things, it will be impossible to meet the changes of the times, and there will be reasons enough for disorder.’ In a typical Confucian view, virtue is the root while law is a branch. If taking the branches as the root and concentrating on branches (such as on publicising legal codes) rather than on the root (such as on cultivating virtuous characters among the people), then the people would only see the rules of punishment and be led to disregard the importance of personal cultivation. If so, the policy would necessarily lead to the ruin of the state, just as the malnutrition of a tree at its root would definitely result in the withering of the branches.

The Legalist Approach to Law

Since Confucians understood law mainly as penal punishment, they saw it to be their primary task to establish ethical principles concerning how punishments should be applied. Differing from this, Legalists in general understood law in a much wider sense, in which law was identical not only to the codes of punishment, but also to the 'standardized’ patterns of behaviour. The systematic efforts to 'standardise' all dimensions of the society characterise Legalist philosophy and practices, since Legalists believed that the weakness and disorder of a state came from the fact that its order was not followed and its disciplines were not observed. In Legalist writings, law is taken as the key for strengthening a state when military power was the only way to survive and the force was the only means to communicate. Taking law as the most important tool for governance, some Legalists deliberately associated law (fa) with the arts of rulership (shu ) and the authoritative power (shi ). It is in the sense that 'fa' is identified with the standards and regulations enforced by the state and for the state, ‘the term fa assumed a meaning close to that of the English term “law” or, more specifically, “penal law”’. In order to establish the supremacy of one state over others, Legalists designed various political strategies based on their understanding of law, including concentrating the power to the hands of the ruler who was entrusted with the authority to make use of laws to punish the bad and to reward the good, and institutionalising and publishing legal codes. These strategies laid down the solid foundation for an authoritarian regime and would have a lasting legacy in Chinese politics.

In brief, the primary concerns in Legalist approaches to law are with the following questions. First, why must the system of the state’s regulations be reformed? Almost all leading Legalists were the propagators of political and legal reform (bianfa, 變法). For them, the old regulations or penal codes were the product of the past, and were outdated at best for the present. It is a fundamental Legalist conviction that standards must change along with the time and there is no necessity to imitate antiquity. Underlying this was the opposition to the strategy often associated with Confucians that ancient rites and moral norms must be observed. It therefore became a characteristic tenet of Legalism that to empower the state and enrich the country, old laws must be reviewed, the outdated abandoned and the new instituted. Secondly, why does the state need law? Based on the doctrine that humans are born selfish and would do whatever they can to satisfy their own desires, Legalists suggest that it is of the utmost importance that laws and regulations, weights and measures, norms and codes which were established in order to restrain people, should be maintained and strengthened. Unlike Confucians who firmly believed that the virtues of the sage-ruler had sweeping moral influences under which the people were led to transform themselves, some Legalists did not believe such sage-kings and their moral forces ever existed, while some argued that even they did exist, they were not available now. Therefore, instead of waiting for the coming of the sage-ruler, Legalists sought to create peace by establishing laws to restrain the average people, and to punish the ‘transgressors’. Thirdly, why must laws be severe? A typical answer to this question is that ‘the best penalties are those which are severe and inescapable, so that the people will fear them’. Shang Yang made it plain that fear was the tool for the ruler to employ in order to establish a happy state: ‘If you govern by punishments, the people will fear; being fearful, they will not commit villainies; there being no villainies, people will be happy in what they enjoy’. Han Fei induced his argument from the observation of what would happen in a family: ‘In strictly managed households, fierce rebels will not appear, but a compassionate mother has spoilt sons; from this I know that by severity violence may be prevented, but that virtue and kindness are not effective in causing disorder to cease’ (Han Fei zi, Chapter 19, paragraph 50).

Reflections on Confucian and Legalist Approaches to Law

Traditionally made and today still popularly upheld is the verdict that early Confucians rejected law while Legalists propagated the rule by law. There is sufficient evidence that Confucians were hostile to Legalist policies, and Legalists strongly condemned Confucians for their supposed opposition to law. However, the statement that the early Confucians and Legalists were opposed to each other in their theories of law is misleading, or at least ambiguous. In a Confucian or Legalist context, law may be, and indeed has been, understood at three levels, and on each of them Confucians and Legalists diverged as well as converged.

At the first level, law is understood as ‘standards’ or ‘models’ for social, political and private life. In terms of law's social roles, Confucians and Legalists shared a good deal in recognising the usefulness of publicly recognised standards, functioning as the guidelines and norms for human behaviour. It is interesting to note that almost all early Confucians and Legalists stressed the importance of 'social standards and norms', and compared law for the state to ‘the compass and square’ for a carpenter, although differing greatly in what they were in essence and why they were important. For Mengzi, a 'humane government' following 'the Way of the former kings' would definitely lead to a peaceful world, and proper norms and standards for it is the same as the compass and square for a carpenter, or as the six pitch pipes for a musician (Mengzi, 4A: 1). For Xunzi, it is the rituals that set the standards for life, just like the plumb line for measuring crooked and straight, like the scale for heavy and light, and like L-square for square and round, because ‘Rites are the highest expression of hierarchical order, the basis for strengthening the state, the way by which to create authority, the crux of achievement and fame’ (Xunzi, in Watson, p. 95, 71). The same ideas can also be found in Legalist writings. For example, the third of the so-called ‘Seven Standards’ declared in the Guanzi as the ways to strength and victory defines fa as ‘standards’ and compares ‘fa’ to the carpenter’s ink and line, compasses and L-square, the scale and the volume measures. Just as ink and line etc. enable a carpenter to work with mechanical precision, fa provide the ruler and the people with stardards and impartial norms in managing the state and ordering their own business (Guanzi, vol. 2, chapter 6). The idea of law as the ‘standard’ is also clearly stated in the Han Fei zi: ‘Stretch the plumb line, and crooked wood can be planed straight; apply the level, and the bumps and hollows can be shaved away…In the same way one should use laws to govern the state, disposing of all matters on their basis alone’. The reason for such a common concern about ‘standards and norms’ is that both Confucians and Legalists were strong-minded interventionalists, who engaged themselves in the business to bring order and peace to the world troubled with disorder, chaos and disruption, whereby constructing a fundamental philosophical system that takes political and social dimensions as the core of human experience. Both agree that order and peace cannot be realised unless there are some commonly recognised standards. However, in terms of what constitutes, or underlies, the standards, Confucians and Legalists went in two quite different directions. Confucians such as Confucius, Mengzi and Xunzi put forward li (rites, codes of conduct), de (virtue or moral force) or renyi (benevolence and righteousness) as the standards, or the basis of the standards. Therefore for Confucians 'law' as the social standards is not only penal laws but also (and indeed more importantly) the moral model and ethical norms (such as 'renyi fa' 仁義法, the law of benevolence and righteousness or 'lifa' 禮法, the law of rites). These 'moral laws' are formed and shaped in the ancient culture, and maintained through personal cultivation, learning and education, and must be the real contents of all ‘legal codes’. Legalists insisted, however, that fa or or the legal codes be self-explained and self-sustained, and that chaos came from the confusion of legal codes and moral norms. For them, to establish and maintain social standards, the state must establish first the legal codes to punish those who violate the rules and to reward those who follow them.

At the second level, law is understood as ‘penal codes’ or the various ways to enforce punishment. As said above, punishment is the primary meaning of law in early China. Both Confucians and Legalists agree that punishing crimes and wrongdoings is necessary to guarantee peace and harmony within the state and between states, and both insist that it is of vital importance that punishment must fit crimes. However, they differed in terms of how punishments should be applied. The Legalist practice of law is primarily the one for administrative efficiency. Based on the belief that humans are born with a nature to long for benefits and to fear the painful, Legalists propagate that legal codes must be publicly available so that people know exactly what they should do and what they must not, that punishments must be indifferent so that whoever committed crimes would receive the same punishment, and that the law must be carried out ruthlessly so that people would no longer dare to commit the same crime or to challenge the authority. Believing that peace and harmony would never come from fear, Confucians condemned Legalists for inflicting severe punishment on the people. In this sense, what concerned Confucians most were the problems of ‘legal ethics’. They drew particular attention to the ethical issues of the application of law, and emphasise that the exercise of law must conform to, and must be based on, moral principles. From the queries of how the law is applied to society and how to make use of law for social order and harmony, Confucians conclude that the real 'law' must have 'codes' as the form and moral virtues as the contents.

At the third level, law is understood as the tool of the ruler to govern the state. Both Confucians and Legalists agree that the final sanction for social and military matters must be in the hands of the ruler (either the king or the duke, depending on the contexts), and law should be employed by the ruler for an effective government. Their differences are that for Confucians, penal codes are only one of many ways to secure peace and harmony, and are not necessarily the most important one, while for Legalists legal regulations are THE way for a well-governed state. However, even in the area of law as the ruling means, we can see that Confucians and Legalists share some grounds. Confucians did not blindly oppose the use of law, and Confucius and Xunzi took a positive attitude towards the function of enforcing law in society, regarding it as useful to cultivate good characters among the people. Legalists were not simply the opponents of ethical norms and moral virtues, either, as Shang Yang once put it plainly that ‘The law is the expression of love for the people, rites are a means for making things run smoothly’. It is true that Legalists often attacked the Confucian propagation of virtues such as humanity, righteousness, propriety and wisdom, but their arguments were based on the so-called fact that these virtues were useless or less effective as far as the establishment of social order and personal goodness is concerned. Instead of using virtues to generate the obedience to law, Legalists used law, especially penal laws as an effective way for transforming a bad character and for creating a truly moral society. This was illustrated very well by Han Fei who took a boy of a bad character as an example: ‘His parents may get angry with him, he does not change. His neighbours may reprove him, it does not have any effect on him. His masters may moralise him, he does not reform…But when the district official sends his soldiers and in the name of the law searches for wicked individuals, then he becomes afraid, changes his principles and reforms his conduct’.

At all these three levels, the primary task for Confucians and Legalists is to establish the authority of normality. Both Confucians and Legalists agree that a society needs certain rules or norms in order to regulate human behaviour, whether these norms are called ‘fa’ or ‘li’ (rituals, codes of conduct). Inheriting the ancient and therefore more spiritual tradition, early Confucians found the final sanction of human conduct in a semi-anthropomorphic power or being, Shangdi上帝 (the Lord on High) or Tian (Heaven), or the spiritual mandate (Tian ming天命). Believing that they were endowed with the mission from Heaven to transmit the culture of the sage-kings and to practise the Way of Heaven, these Confucians would challenge the human authority whenever it was not in agreement with what they believed to be right. Unlike Moists (Mojia 墨家, the followers of 墨子, 479?-438? BCE) who directly identified a spiritual personal Being as the source and resource of human laws and norms, Confucians sought to rationalise their understanding of the authority of moral norms through penetrating and exploring human nature. Whether humans are born with an innately good or bad nature, it is argued, they must follow the norms of Heaven, either by way of personal cultivation of virtue or under the guidance of the teachings of the sage. Therefore, the human rule would not be justified unless the ruler himself had fulfilled the Way of Heaven. By mutually interpreting the meanings of xing (nature or human nature), de (virtues), ming (the fate or the Mandate) and dao (Way), Confucians elevated the value of teaching (of the sage) and the significance of self-cultivation in implementing social norms, and turned their search for the source of secular regulations into establishing a religio-political commonwealth. Legalists also endeavoured to establish the authority of social norms. However, their search followed a quite different route and reached a different conclusion. Not taking Heaven as a spiritual power, Legalists often found themselves in a vicious circle when coming to illustrate the final sanction of human behaviour: The authority of law came from the ruler, while the authority of the ruler must be based on law. On the one hand, Legalists entrusted the king with the power to institute laws as the regulations of social, political and military activities. On the other, Legalists confessed that the ruler did not have any legitimacy unless his rule was based on the authority of law, as Shang Yang argued that the king ruling over the state was not because he had more knowledge or he was more virtuous or he was more courageous than others, but because of law. For most Legalists, the authority of law is self-evident and does not need to be supported by other forces or powers. Some of them went further to argue that the authority of the law is rooted in human nature and law is justifiable by its bringing social and political benefits to the state. Legalists had a gloomy vision of human relations and explored the dark side of human nature for the necessity of law: because human nature is to long for the pleasant and to avoid the painful, law is necessary to restrain the wayward intentions and behaviour. Legalist doctrines were also frankly realistic, and Legalists tended to justify the authority of law by revealing the social-political effects of enforcing penalties on the people. Judging from the advantages the systematic implementation of codified regulations would bring to the state in the life-or-death competition, Legalists reached a utilitarian conclusion that the justification of laws was to be found in their social and political benefits.


In this paper I have examined some of the differences between Confucianism and Legalism in their approaches to law. Seeing these differences, some scholars have often jumped to a number of presumptions such as Confucians were opposed to the use of law, and Legalists excluded morality from their concept of law. As argued above, the differences between Confucian and Legalist approaches do not, and should not be allowed to, conceal us from seeing the common ground on which each of them constructed their own doctrine of the law. It was these shared basics in the understanding of law that enabled the later merge of Confucianism and Legalism (rufa heliu 儒法合流) to take place following the collapse of the Legalist Qin dynasty. Since then and throughout the political history of imperial China, the so-called 'lizhi' and 'fazhi' were always closely combined or alternatively applied, and fa and de as the ruling tools could hardly be separated.