The Origin Of Law:A Study Of The Political Philosophy Of Hanfeizi

Hanfei’s fa falls into the category of mandatory rules backed by power, which distinguishes it from Li, whose usual form is moral education. Then what is the basis of fa? Is it the will of the monarch, or is it dao? The common viewpoint is that Hanfei’s fa should be attributed to the monarch, and the monarch’s personal will provides the authoritative basis of fa, namely "Jun sheng fa", or as written in Hanfeizi, Shou Dao, "the Sacred Monarch establishes the laws". Scholars that hold this point of view include Mou Zongsan, Tang Junyi, Gao Boyuan, etc. The author of this thesis, however, believes that such a point of view fails to distinguish the "specific law" level and the bigger "legal mechanism" level of fa in Hanfeizi. When it comes to the specific laws, there is no doubt that the legislative power lies with the monarch and that the officials and common people abide by laws due to the monarch’s authority. On the "mechanism" level, however, the monarch himself/herself is restricted by the "mechanism". In Hanfei’s ideal world, the monarch will enjoy the ultimate "benefits", yet little freedom. The monarch cannot break the limits set by the "mechanism", not even has the right to give up his/her throne, as the monarch has a very close bond with the nation. The authoritative basis is therefore not the monarch’s will, but a metaphysical source of power:Dao, as expresses in Hanfeizi, Da ti, Hanfeizi, Shi Xie. There have been different explanations to dao, such as spirit and qi, or the universe’s general rules. The two basic attributes of dao, however, are fairly certain. Firstly, dao’s restrictive power is external and universal, and everyone-the common people, the officials, the monarch or even the nation itself have to abide by dao. Secondly, dao can be observed and revealed. There the basic mechanism of "Yin dao quan fa" is to observe both the heavenly dao and humanity’s dao to establish proper laws. In Hanfei’s ideal world, only the monarch has the legislative power as he believe that the wise monarch, with his/her superb capability in observing and reasoning, can find and follow the path of dao and establish laws according to dao. Yet in reality " Yin dao quan fa’ is hard to realize. Firstly, although we can establish fa out of dao, its effectiveness still depends on whether it satisfies the common good of the nation. It is hardly the case, however, that the own interests of the monarch, the officials or the common people are the same with that of the nation. The consequence is that the enforcement of "Yin dao quan fa" lacks the necessary power. Secondly, the unrealistic expectation for the monarch’s wisdom and the lagging of dao’s functioning may both keep fa away from dao. When the laws are being established, the dependence on the monarch’s wisdom and the consequent expansion of the monarch’s right may result in the fact that law’s basis actually lies with the monarch rather than dao. At the same time, as Hanfei’s dao is objective, its function-reward and punishment, is lagging rather than instantaneous and thus places somewhat empty restriction on the monarch. Consequently, the authoritative basis of the law may again lies with the monarch rather than dao.