A Study Of Han Fei’s Legal Thought

Han Fei, the last greatest thinker and the last legalist in pre-Qin era of China, notonly synthesizes the legal school but also proposes the idea of ruling by law (RBL),which is an indispensable part for our legal culture. It is believed that Han Fei hasplayed a very important role in our history of thought, and has brought stronginfluence to bear on the development in our long history. So it occupies a status ofvital importance to reflect upon his idea of RBL when our country is in the process ofestablishing its socialist nomocracy.Han Fei Thought is an in-depth, comprehensive and sophisticated system ofideas covering many fields, including philosophy, politics, law, economics, military,management, education, history and arts etc. This dissertation is mainly concernedabout Han Fei’s legal thought, and it tries to explore and analyze this topic in terms ofits carrier, its background, its theoretical underpinning, its paradigm, preposition andposition, and its historical influence and current implication.The book, Han FeiZi, carries all of Han Fei’s idea of RBL, so it is necessary tobase the study of Han Fei’s legal thought on it. This article provides a detailedanalysis of the book, introducing not only its editors and edition process, but also itsdifferent editions and contents. As for its editors and edition process, the article, onthe basis of the previous studies, argues that Han Fei’s works have already come outwhile he is still alive, whereas most of them are published in single booklets. Thecompilation and completion of the book can be divided into two phases, the firstphase of compilation is done by Han Fei’s students and followers, while the secondphase of edition and completion is carried out by Liu Xiang, a scholar in Han Dynasty,and it lasts for almost50years, from the early years of Han Dynasty to the rulingyears of Emperor Xiao Wu (Liu Che). After Liu Xiang’s edition, Han Fei’s writingthat contains55articles comes into its being.Speaking of the different editions of Han FeiZi, this paper, after a briefintroduction of the research background, presents a detailed analysis of some important editions, including Qian Dao edition, Dao Cang edition, Han Zi Yu Pingedition, Zhao Yongxian edition in Ming Dynasty, and the widely-used edition and itsannotation edition in the20th century. The thesis also explores the trueness andcontents of the book’s different sections. Obviously, it is a necessary but complexissue to detect the trueness. In view of the previous studies, the article suggests that itshould not be denied that most of the writings in Han FeiZi are written by Han Feihimself, and only that there are some discrepancies about some single words orsentences, and that the final section of Cun Han (Maintaining Han) is written by Li Si,a famous scholar in Qin Dynasty, and that there are some disagreements about thesection of Chu Jian Qin (First Impression of Qin Dynasty). Based on their relevanceto the idea of RBL, it is suggested that the sections and contents of Han FeiZi shouldbe divided into the strong part and the weak part, with the former referring to31strongly related chapters and being discussed in detail, while the latter containing24less strongly related sections and only being briefly introduced.It should be the first step to clarify that which school Han Fei belongs to andwhere his thought comes from before studying his legal thought, and then to furtherexplore the background on the basis of it. After a discussion of the origin of thelegalist school, the discrepancy about “legalist”, and its representative figures, it issuggested that that, ever since the appearance of the legalist school, Han Fei has keptbeing a legalist, so his thought should belong to the legalist school no matter how dothe scholars categorize the school. On account of Han Fei’s birth day and death day,the article firstly defines that Han Fei lives in Han, a state at that time, in the later partof the Warring States period, and then discusses the influence of the time on Han Feiwith regard to Han’s history and territory, the relationship between Han Fei and Kingof Han, and the living conditions before and after Han Fei is born, aiming tounderstand the influence of that time and that space on the conception of RBL. Afterthis, a detailed discussion is made to talk about the political, economical and culturalconditions at that time on account of the principle that social being determines socialconsciousness. Han Fei’s legal thought, complex as it appears, can not be created byHan Fei himself, but by the integration of the previous achievements, in theory and inpractice, made by the famous people in the legalist school, such as Shen Buhai, Shang Yang, Shen Dao, and by the assimilation of the beneficial ideas from other schoolsthat favors RBL, for example Mo school, Taosim, Confucianism.After an in-depth exploration, the article proposes that it is inaccurate to thinkthat Han Fei’s legal thought comes only from the legalist school; rather it is formed ina complex way, drawing from many resources. Han Fei’s idea of RBL is realized by aset of paradigms and propositions. The analysis of the basic paradigms of Tao, moraland reason reveals that Han Fei’s legal thought assimilates the metaphysical thoughtof ‘Tao’ proposed by Lao Zi and the understanding of ‘Tao’ by other scholars. Theanalysis also shows that Han Fei puts ‘Tao’ into practice by means of ‘reason’, whichis of philosophical significance for the formation his legal thought.Detailed analysis is also made with regard to the three basic concepts for theRBL idea,‘law’,‘technique’ and ‘power’. As for ‘law’, the article proposes ninecategories, that is, constitution, public law, law and decree, order, moral standard, ban,criminal law, power standard and measurement, and rule and regulation. The divisionand analysis aims to facilitate the understanding the ideal of RBL. Great emphasis isput on the contents and categories of ‘technique’, and the analysis indicates that it is anecessary method to ensure the implementation of law. Han Fei hopes that themonarch can, by rule of law, cross-use the unknown inaction method, the counselingmethod of appointing officials, and the surveillance method by real name, thusachieving the aim of ruling by inaction and eradicating the wicked behavior at itsburgeoning point. As for ‘power’, the article probes deep into the power that is set bypeople, and reveals that it is conceived for most of the wise leaders, and not isconfined to the extreme minority, expressing Han Fei’s hope that the monarch can usetheir power but not deviate from the objective law.The basic propositions in Han Fei’s thought of law can be summed up in sevencategories, that is,‘law and Tao’, the Taoist foundation of RBL;‘rule by socialrelationship’, the humanistic foundation of RBL;‘competing for moral in ancienttimes, wisdom in middle age, and strength nowadays’, the origin of law;‘compilingbooks on law’ and ‘praising and punishing according to morale’, the connotation andcharacteristic of law;‘riding rhino and horse on roads, driving boat and ship inwaters’, the practicability of law;‘setting rule for award rather than for punishment’, the principle of legislation;‘keeping the law, following the law and executing thelaw’, the claim to rule by law instead of ruling by person.A systematic review of the rudimental position of the legal thought tells us that itis a comprehensive system, in which the national strength is the purpose,‘law’,‘technique’ and ‘power’ the method, and law the center. On the difference between‘rule by law’ and ‘rule by person’, which is concerned about the essence of RBL, thearticle argues that Han Fei’s RBL thought, in comparison with Confucianism, belongsto the former one, with the characteristic of ruling by any existent law, awarding andpunishing by law, and obeying the law by the monarch, the official and the ordinarypeople.Han Fei’s legal thought not only bears great influence in ancient times, mainlyindicated by its influence on Qin Dynasty and the feudal society after Qin as well astheir main politicians, but also bears strong referential meaning for the building-up ofnomocracy nowadays in China. Regarding the effect of Han Fei’s legal thought onQin Dynasty, there are three different views, that Han Fei destroys Qin, Han Feibrings prosperity and also destruction for Qin, and Qin’s destruction should not besimply attributed to the legalist thought represented by Han Fei. The article tries toexplain the effect of Han Fei’s legal thought on Qin in the aspect of its purpose, itseffect on the policy made by the first emperor of Qin, and its relationship with Qin’sfalling-down.In addition to the above analysis, a further suggestion is made that Han Fei’slegal thought displays multiple and complex nature in the process of its socialization,for which the main reason is that the practitioners can not fully understand it and useit due to their poor comprehension, subjective motivation and political practice. Itwon’t be objective and comprehensive to attribute its effect to its nature if there is nospecific analysis of the features. Therefore, it is inappropriate to view its merits ordemerits in a simple way as Han Fei’s legal thought exerts a very complex effect onQin Dynasty.The truth is that all ancient states after Qin implement a centralized politicalsystem, so they can not get rid of the influence exerted by Han Fei’s legal thought.But drawing lessons from Qin, the rulers adapt it and cover it with Confucianism, making it get the feature of ‘inner legalism and outer Confucianism’, which, in fact,establishes the leading role of Confucianism in an implicit way, and establishes thereal status for legalism in an explicit way after Han Dynasty. So it can be said theeffect of Han Fei’s RBL thought is hidden in the moral and ethic preachings proposedby the Confucian scholars. The referential meaning of Han Fei’s idea of RBL for theconstruction of China’s nomocracy nowadays can be viewed at two levels. At thetheoretical level, it can be taken as a complementary historical resource, and at thespecific and practical level, it is directly beneficial for our nomocray. Nonetheless, itshould also be made clear that one of law’s important functions is to defend the basicrights of ordinary people, whereas this point is not mentioned by Han Fei, so it is oneof Han Fei historical limitations.