380 DERK BODDE [PROC.AMER.PHIL.SOC. what at one time must have been the gods,demi- sage-king nor even to a Chinese at all,but rather gods,or monsters of full-fledged myth have since to a"barbarian"people,the Miao,alleged to have become "euhemerized"or "historicized"into the flourished during the reign of the (legendary) denatured sage-kings,heroes,or rebels of pseudo- sage Shun (trad.twenty-third century B.c.). history.22 Thus the key sentence tells us:"The Miao people When we turn to the legal sphere,therefore,it made no use of spiritual cultivation,but controlled should not surprise us that here too the atmos- by means of punishments (hsing),creating the phere is entirely secular.What is really arresting, five oppressive punishments,which they called law however,especially when we remember the hon- (fa)."Then the text goes on to say that many ored status of law in other civilizations,is the overt innocent people were executed by the Miao,who hostility with which its appearance is initially were the first to administer such punishments as greeted in China-seemingly not only as a viola- castration,amputation of the nose or legs,etc. tion of human morality,but perhaps even of the Shang Ti or the“Lord on High”(the supreme total cosmic order.23 god of the ancient Chinese),seeing the resulting An excellent example of this attitude is a story disorder among the people,felt pity for the inno- -apparently the historicized fragment of what cent and hence exterminated the Miao,so that they was once a longer myth-providing probably the had no descendants.25 earliest explanation for the origin of fa,written The abhorrence of law expressed in this story law.The story appears in a short text entitled Li hsing (Punishments of Lu),itself a section of no doubt reflects a period in legal development the important classic known as the Shu ching (sixth or fifth century B.c.)when written law was (Document Classic),where it is placed in the still a novelty and hence viewed with suspicion. mouth of a king who reigned around 950 B.C. In later centuries,when law became more preva- Its actual date of composition must surely be sev- lent and the need for its existence became increas- eral centuries later,but just how much later is ingly recognized,various nonmythological and hard to say with exactness.However,the fact soberly "sociological"explanations of its origin that it is quoted and mentioned by name in another appeared.Though their attitude toward law is text of the fourth century B.c.provides us with no longer hostile,they all agree with the unknown at least a terminus ante quem.24 author of the Miao legend in explaining the origin The remarkable feature of this story is that it of law in strictly secular terms.The following attributes the invention of fa neither to a Chinese are three representative examples,the first of 22 See D.Bodde,"Myths of Ancient China,"in Samuel which dates from the pre-imperial age (third N.Kramer,ed.,Mythologies of the Ancient World (New century B.c.),and the other two from the Han York,Doubleday Anchor Books,and Chicago,Quad- empire (second century B.C.and first century A.D., rangle Books,.1961),pp.369-408,esp.372-376. 23 The relationship of Chinese law to the cosmic order respectively): will be discussed further in sect.11.Here it should be mentioned that in purportedly early literature there ap- In the days of antiquity,before the time when there pears a well-known tradition about a legendary adminis- were rulers and subjects,superiors and inferiors,the trator of justice,Kao Yao,which at first sight seems to people were disorderly and badly governed.Hence run counter to the hostile attitude just mentioned.Closer the sages made a division between the noble and examination,however,shows that the relationship of the humble,regulated rank and division,and estab- this tradition to actual written law is a questionable one. lished names and appellations,in order to distinguish See appendix:“Kao Yao and Early Chinese Law.” the ideas of ruler and subject,of superior and in- 24 For translation of the story that follows,see James ferior....As the people were numerous and wick- Legge,The Chinese Classics (5 v.,Hong Kong Univer- edness and depravity arose among them,they [the sity Press reprint,1960)3:pp.591-593;also Bernhard sages]therefore established laws (fa)and controls Karlgren (whose version is followed here with modifica- tions),"The Book of Documents,"Bulletin of the Mu- 2b Further fragments of this myth,as found in this and seum of Far Eastern Antiquities 22 (Stockholm,1950): other texts,state that the Lord on High then separated 74.The work in which the Li hsing is later quoted is the Heaven from Earth so that people could no longer pass Mo-taw (compiled by followers of the philosopher of the from one to the other;also that the Miao,instead of being same name,who lived sometime between 479 and 381 exterminated,were banished to the extreme northwestern B.C.);see Y.P.Mei,transl.,The Ethical and Political corner of the world,where they continued to exist as a Works of Motse,Probsthain's Oriental Series 19 (Lon- race of winged beings who,despite their wings,were don,1929),pp.45-46,51,and esp.64 (quoting the same unable to fly.See Bodde,op.cit.(cited in note 22), sentence which appears below). Dp.389394. This content downloaded by the authorized user from 192.168.82.206 on Thu,15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions
380 DERK BODDE [PROC. AMER. PHIL. SOC. what at one time must have been the gods, demigods, or monsters of full-fledged myth have since become "euhemerized" or "historicized" into the denatured sage-kings, heroes, or rebels of pseudohistory.22 When we turn to the legal sphere, therefore, it should not surprise us that here too the atmosphere is entirely secular. What is really arresting, however, especially when we remember the honored status of law in other civilizations, is the overt hostility with which its appearance is initially greeted in China-seemingly not only as a violation of human morality, but perhaps even of the total cosmic order.23 An excellent example of this attitude is a story -apparently the historicized fragment of what was once a longer myth-providing probably the earliest explanation for the origin of fa, written law. The story appears in a short text entitled Lii hsing (Punishments of Lu), itself a section of the important classic known as the Shu ching (Document Classic), where it is placed in the mouth of a king who reigned around 950 B.C. Its actual date of composition must surely be several centuries later, but just how much later is hard to say with exactness. However, the fact that it is quoted and mentioned by name in another text of the fourth century B.C. provides us with at least a terminus ante quem.24 The remarkable feature of this story is that it attributes the invention of fa neither to a Chinese 22 See D. Bodde, "Myths of Ancient China," in Samuel N. Kramer, ed., Mythologies of the Ancient World (New York, Doubleday Anchor Books, and Chicago, Quadrangle Books, 1961), pp. 369-408, esp. 372-376. 23 The relationship of Chinese law to the cosmic order will be discussed further in sect. 11. Here it should be mentioned that in purportedly early literature there appears a well-known tradition about a legendary administrator of justice, Kao Yao, which at first sight seems to run counter to the hostile attitude just mentioned. Closer examination, however, shows that the relationship of this tradition to actual written law is a questionable one. See appendix: "Kao Yao and Early Chinese Law." 24 For translation of the story that follows, see James Legge, The Chinese Classics (5 v., Hong Kong University Press reprint, 1960) 3: pp. 591-593; also Bernhard Karlgren (whose version is followed here with modifications), "The Book of Documents," Bulletin of the Museum of Far Eastern Antiquities 22 (Stockholm, 1950): 74. The work in which the Lii hsing is later quoted is the Mo-tzu (compiled by followers of the philosopher of the same name, who lived sometime between 479 and 381 B.C.) ; see Y. P. Mei, transl., The Ethical and Political Works of Motse, Probsthain's Oriental Series 19 (London, 1929), pp. 45-46, 51, and esp. 64 (quoting the same sentence which appears below). sage-king nor even to a Chinese at all, but rather to a "barbarian" people, the Miao, alleged to have flourished during the reign of the (legendary) sage Shun (trad. twenty-third century B.C.). Thus the key sentence tells us: "The Miao people made no use of spiritual cultivation, but controlled by means of punishments (hsing), creating the five oppressive punishments, which they called law (fa)." Then the text goes on to say that many innocent people were executed by the Miao, who were the first to administer such punishments as castration, amputation of the nose or legs, etc. Shang Ti or the "Lord on High" (the supreme god of the ancient Chinese), seeing the resulting disorder among the people, felt pity for the innocent and hence exterminated the Miao, so that they had no descendants.25 The abhorrence of law expressed in this story no doubt reflects a period in legal development (sixth or fifth century B.C.) when written law was still a novelty and hence viewed with suspicion. In later centuries, when law became more prevalent and the need for its existence became increasingly recognized, various nonmythological and soberly "sociological" explanations of its origin appeared. Though their attitude toward law is no longer hostile, they all agree with the unknown author of the Miao legend in explaining the origin of law in strictly secular terms. The following are three representative examples, the first of which dates from the pre-imperial age (third century B.C.), and the other two from the Han empire (second century B.C. and first century A.D., respectively): In the days of antiquity, before the time when there xvere rulers and subjects, superiors and inferiors, the people were disorderly and badly governed. Hence the sages made a division between the noble and the humble, regulated rank and division, and established names and appellations, in order to distinguish the ideas of ruler and subject, of superior and inferior. . . As the people were numerous and wickedness and depravity arose among them, they [the sages] therefore established laws (fa) and controls 25 Further fragments of this myth, as found in this and other texts, state that the Lord on High then separated Heaven from Earth so that people could no longer pass from one to the other; also that the Miao, instead of being exterminated, were banished to the extreme northwestern corner of the world, where they continued to exist as a race of winged beings who, despite their wings, were unable to fly. See Bodde, op. cit. (cited in note 22), pp. 389-394. This content downloaded by the authorized user from 192.168.82.206 on Thu, 15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions
V0L.107,N0.5,1963 BASIC CONCEPTS OF CHINESE LAW 381 and created weights and measures,in order thereby the sixth century B.c.,a combination of social, to prevent these things.26 political,economic,and technological forces was Law (fa)has its origin in social rightness (yi). Social rightness has its origin in what is fitting for bringing about an accelerating dissolution of the the many.What is fitting for the many is what old order. accords with the minds of men.Herein is the essence The new forces included,among others,new of good government... Law is not something sent agricultural techniques which made increases in down by Heaven,nor is it something engendered by Earth.It springs from the midst of men themselves, population possible;the growth of commerce and and by being brought back to men]it corrects rise of a money economy;the buying and selling itself.27 of land and partial freeing of the peasants from The sages,being enlightened and wise by nature, their former serfdom;a growing administrative inevitably penetrated the mind of Heaven and Earth. complexity in the state governments;and the ap- They shaped the rules of proper behavior (li), created teachings,established laws (fa),and insti- pearance of competing schools of philosophy and tuted punishments (hsing),always acting in accord- politics.The final centuries of the Chou dynasty, ance with the feelings of the people and patterning and appropriately known as the Period of the Warring modeling themselves on Heaven and Earth.28 States (403-221 B.C.),saw increasingly bitter warfare between the few large states still surviv- 4.THE EARLIEST CHINESE“CODE” ing,till one of them,the state of Ch'in,succeeded From myth and social theory it is time to turn in swallowing up its rivals one by one,and in 221 to the concrete beginnings of Chinese written law B.C.finally created the first centralized empire in as recorded in authentic history.The Chou dy- Chinese history.20 nasty (ca.1027-221 B.c.)functioned during its Such is the background of interrelated changes early centuries under a political system which has against which should be viewed the creation of often been compared to European feudalism.At the first "codes"of written law in the late sixth the top were the Chou kings,who exercised nomi- century B.C.The earliest reliably known to us is nal sovereignty over the entire Chinese cultural the“books of punishment'”(hsing shu)which world.Under them were vassal lords who held as Tzu-ch'an,prime minister of the state of Cheng, fiefs from the Chou house a multitude of small ordered to be inscribed in 536 B.c.on a set of principalities.The latter were subdivided in turn bronze tripod vessels.His action was followed by into the estates of subordinate lords and officials, similar steps in this and other states in 513,501, while at the bottom of the pyramid came the and later.Though the texts of these "codes"have peasant serfs,hereditarily attached to these estates. in every case been lost,we may judge of the oppo- In the course of time,however,the vassal princi- sition they aroused from the famed letter of protest palities broke away from the Chou overlordship which the high dignitary of a neighboring state, and became completely independent states.By Shu-hsiang,sent to Tzu-ch'an upon the promulga- tion of the Cheng laws:3o 26 Shang chiin shu,chap.23.This is a third century B.C.work belonging to the Legalist school (on which see Originally,sir,I had hope in you,but now that is below). See translation (here slightly modified)by all over.Anciently,the early kings conducted their J.J.L.Duyvendak,The Book of Lord Shang,Probs- administration by deliberating on matters [as they thain's Oriental Series 17 (London,1928),pp.314-315. arose];they did not put their punishments and penal- 27 Huai-nan-taw (The Master of Huai-nan),9/20a ties [into writing],fearing that this would create a (edition of Liu Wen-tien,Huai-nan hung-lieh chi-chieh, contentiousness among the people which could not be checked. Shanghai,Commercial Press,1933).This is an eclectic Therefore they used the principle of social philosophical work,composed by scholars attached to the rightness (yi)to keep the people in bounds,held them court of Liu An,Prince of Huai-nan (died 122 B.c.). together through their administrative procedures,ac- The chapter here quoted represents the Legalist school. tivated for them the accepted ways of behavior (li), 28 Han shu (History of the [Former]Han Dynasty), chap.23 (Treatise on Punishments and Law),written by 20 For a survey of these developments,see D.Bodde, "Feudalism in China,"in Rushton Coulborn,ed.,Feudal- Pan Ku around A.D.80.See translation (here slightly modified)in Hulsewe,Remnants of Han Law (cited in ism in History (Princeton,N.J.,Princeton University note 12)1:pp.321-322.Though the sages are here said Press,1956),pp.49-92. to have "penetrated the mind of Heaven and Earth," s0 The letter is preserved in the Tso chuan history (probably compiled mostly in the third century B.c.from they surely did so through their own intelligence and not with the aid of divine revelation.Chinese thinking regu- earlier records).See translation of Legge (here modi- fied),Chinese Classics (cited in note 24)5:p.609. larly attributes the creation of civilization to the intel- For a rather similar criticism by Confucius of the promul- ligence of the ancient sages,but never suggests that they received divine revelation. gation of penal laws in the state of Chin in 513 B.c., see ibid.,p.732. This content downloaded by the authorized user from 192.168.82.206 on Thu.15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions
VOL. 107, NO. 5, 1963] BASIC CONCEPTS OF CHINESE LAW 381 and created weights and measures, in order thereby to prevent these things.26 Law (fa) has its origin in social rightness (yi). Social rightness has its origin in what is fitting for the many. What is fitting for the many is what accords with the minds of men. Herein is the essence of good government. . . Law is not something sent down by Heaven, nor is it something engendered by Earth. It springs from the midst of men themselves, and by being brought back [to men] it corrects itself.27 The sages, being enlightened and wise by nature, inevitably penetrated the mind of Heaven and Earth. They shaped the rules of proper behavior (ii), created teachings, established laws (fa), and instituted punishments (hsing), always acting in accordance with the feelings of the people and patterning and modeling themselves on Heaven and Earth.28 4. THE EARLIEST CHINESE "CODE" From myth and social theory it is time to turn to the concrete beginnings of Chinese written law as recorded in authentic history. The Chou dynasty (ca. 1027-221 B.C.) functioned during its early centuries under a political system which has often been compared to European feudalism. At the top were the Chou kings, who exercised nominal sovereignty over the entire Chinese cultural world. Under them were vassal lords who held as fiefs from the Chou house a multitude of small principalities. The latter were subdivided in turn into the estates of subordinate lords and officials, while at the bottom of the pyramid came the peasant serfs, hereditarily attached to these estates. In the course of time, however, the vassal principalities broke away from the Chou overlordship and became completely independent states. By 26 Shiang chiin shit, chap. 23. This is a third century B.C. work belonging to the Legalist school (on which see below). See translation (here slightly modified) by J. J. L. Duyvendak, The Book of Lord Shang, Probsthain's Oriental Series 17 (London, 1928), pp. 314-315. 27 Huiai-nan-tzu (The Master of Huai-nan), 9/20a (edition of Liu Wen-tien, Huai-nan huing-lieh chi-chieh, Shanghai, Commercial Press, 1933). This is an eclectic philosophical work, composed by scholars attached to the court of Liu An, Prince of Huai-nan (died 122 B.C.). The chapter here quoted represents the Legalist school. 28 Han shu (History of the [Former] Han Dynasty), chap. 23 (Treatise on Punishments and Law), written by Pan Ku around A.D. 80. See translation (here slightly modified) in Hulsewe, Remniiants of Han Law (cited in note 12) 1: pp. 321-322. Though the sages are here said to have "penetrated the mind of Heaven and Earth," they surely did so through their own intelligence and not with the aid of divine revelation. Chinese thinking regularly attributes the creation of civilization to the intelligence of the ancient sages, but never suggests that they received divine revelation. the sixth century B.C., a combination of social, political, economic, and technological forces was bringing about an accelerating dissolution of the old order. The new forces included, among others, new agricultural techniques which made increases in population possible; the growth of commerce and rise of a money economy; the buying and selling of land and partial freeing of the peasants from their former serfdom; a growing administrative complexity in the state governments; and the appearance of competing schools of philosophy and politics. The final centuries of the Chou dynasty, appropriately known as the Period of the Warring States (403-221 B.C.), saw increasingly bitter warfare between the few large states still surviving, till one of them, the state of Ch'in, succeeded in swallowing up its rivals one by one, and in 221 B.C. finally created the first centralized empire in Chinese history.29 Such is the background of interrelated changes against which should be viewed the creation of the first "codes" of written law in the late sixth century B.C. The earliest reliably known to us is the "books of punishment" (hsing shu) which Tzu-ch'an, prime minister of the state of Cheng, ordered to be inscribed in 536 B.C. on a set of bronze tripod vessels. His action was followed by similar steps in this and other states in 513, 501, and later. Though the texts of these "codes" have in every case been lost, we may judge of the opposition they aroused from the famed letter of protest which the high dignitary of a neighboring state, Shu-hsiang, sent to Tzu-ch'an upon the promulgation of the Cheng laws: 30 Originally, sir, I had hope in you, but now that is all over. Anciently, the early kings conducted their administration by deliberating on matters [as they arose]; they did not put their punishments and penalties [into writing], fearing that this would create a contentiousness among the people which could not be checked. Therefore they used the principle of social rightness (yi) to keep the people in bounds, held them together through their administrative procedures, activated for them the accepted ways of behavior (li), 29 For a survey of these developments,ee D. Bodde, "Feudalism in China," in Rushton Coulborn, ed., Feudalism in History (Princeton, N. J., Princeton University Press, 1956), pp. 49-92. 30 The letter is preserved in the Tso chuan history (probably compiled mostly in the third century B.c. from earlier records). See translation of Legge (here modified), Chinese Classics (cited in note 24) 5: p. 609. For a rather similar criticism by Confucius of the promulgation of penal laws in the state of Chin in 513 B.C., see ibid., p. 732. This content downloaded by the authorized user from 192.168.82.206 on Thu, 15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions
382 DERK BODDE PROC.AMER.PHIL.SOC. maintained good faith (hsin)toward then,and tional'feudal"scale of values.Hence it is natural presented them with [examples of]benevolence that they should be bitterly hostile to the new law, (jem).,,. But when the people know what the penalties are, especially in its early stages.Later,however,as they lose their fear of authority and acquire a con- it became increasingly apparent that law had come tentiousness which causes them to make their appeal to stay,the Confucians softened their attitude to to the written words [of the penal laws],on the the point where they accepted law-although chance that this will bring them success [in court cases].. .Today,sir,as prime minister of the grudgingly-as a necessary evil.Even then,how- state of Cheng,you have built dikes and canals,set up ever,they remained Confucian in their insistence an administration which evokes criticism,and cast that the public enacting of law is not necessary in [bronze vessels inscribed with]books of punishment. the ideal state,and that even in the inferior admin- Is it not going to be difficult to bring tranquility to istrations of their own times,government by law the people in this way?...As soon as the people know the grounds on which to conduct disputation should always be kept secondary to government they will reject the [unwritten]accepted ways of by moral precept and example.31 behavior (li)and make their appeal to the written Opposed to the Confucians were men who,be- word,arguing to the last over the tip of an awl or cause of their ardent advocacy of law,eventually knife.Disorderly litigations will multiply and bribery will become current.By the end of your era,Cheng came to be known as the Legalists or School of will be ruined.I have heard it said that a state which Law (Fa Chia).Most of them were less theoreti- is about to perish is sure to have many governmental cal thinkers than tough-minded men of affairs who, regulations as administrators,diplomats,and political econo- To this criticism,Tzu-ch'an's brief reply was mists,sought employment from whatever state polite but uncompromising: would use their services.Their aim was direct and simple:to create a political and military appa- As to your statements,sir,I have neither the talents ratus powerful enough to suppress feudal privilege nor ability to act for posterity.My object is to save at home,expand the state's territories abroad,and the present age.Though I cannot accept your in- structions,dare I forget your great kindness? eventually weld all the rival kingdoms into a single empire.Toward this goal they were ready to use This letter is eloquent testimony to the un- every political,military,economic and diplomatic changing spirit of conservatism throughout the technique at their disposal.Their insistence on ages.Shu-hsiang's criticisms of dike and canal law,therefore,was motivated by no concern for building and of bigness in government are recog- "human rights,"but simply by the realization that nizably those of any conservative legislator today law was essential for effectively controlling the whenever he attacks public spending and demands growing populations under their jurisdiction. In a balanced budget.What is uniquely Chinese and thinking and techniques they were genuine totali- therefore most significant about the letter,how- tarians,concerned with men in the mass,in ever,is its insistence upon the moral and political contrast to the Confucians,for whom individual, dangers involved in the public promulgation of family,or local community were of paramount legal norms.This view of law seems to have no importance.Yet it would be unfair to regard real parallel in any other civilization. them merely as unscrupulous power-hungry poli- It should not surprise us that Shu-hsiang's let- ticians,for they sincerely believed that only ter is strongly Confucian in tone,notably in its through total methods could eventual peace and use of such Confucian terms as yi,li,hsin and jen. unity be brought to their war-torn world.If For though Confucius was but fifteen when the asked why they did what they did,they would no letter was written,these terms and the ideas they doubt have echoed Tzu-ch'an's dictum:"My ob- connoted were surely already "in the air"when ject is to save the present age." he was young,and were not complete innovations with himself 6.CONFUCIAN VIEWS OF LI AND LAW As against the Legalists'fa or law,the key Con- 5.CONFUCIANS AND LEGALISTS fucian term is li.This is a word with an extra- Though Shu-hsiang himself cannot be formally ordinarily wide range of meanings.In its narrow- accounted a Confucian,his letter nevertheless epit- omizes what may be termed the“purist”Confu- 31 This shift in Confucian attitude,which it is easy to overlook,is rightly stressed by T'ung-tsu Ch't,Law cian view of law.As we shall see shortly,the and Society in Traditional China (cited in note 1),chap. Confucians were staunch upholders of the tradi- 6,sect.3,"The Confucianization of Law,"pp.267 f. This content downloaded by the authorized user from 192.168.82.206 on Thu.15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions
382 DERK BODDE [PROC. AMER. PHIL. SOC. maintained good faith (hsin) toward then, and presented them with [examples of] benevolence (jen). . . . But when the people know what the penalties are, they lose their fear of authority and acquire a contentiousness which causes them to make their appeal to the written words [of the penal laws], on the chance that this will bring them success [in court cases]. . . . Today, sir, as prime minister of the state of Cheng, you have built dikes and canals, set up an administration which evokes criticism, and cast [bronze vessels inscribed with] books of punishment. Is it not going to be difficult to bring tranquility to the people in this way? . . . As soon as the people know the grounds on which to conduct disputation, they will reject the [unwritten] accepted ways of behavior (ii) and make their appeal to the written word, arguing to the last over the tip of an awl or knife. Disorderly litigations will multiply and bribery will become current. By the end of your era, Cheng will be ruined. I have heard it said that a state which is about to perish is sure to have many governmental regulations. To this criticism, Tzu-ch'an's brief reply was polite but uncompromising: As to your statements, sir, I have neither the talents nor ability to act for posterity. My object is to save the present age. Though I cannot accept your instructions, dare I forget your great kindness ? This letter is eloquent testimony to the unchanging spirit of conservatism throughout the ages. Shu-hsiang's criticisms of dike and canal building and of bigness in government are recognizably those of any conservative legislator today whenever he attacks public spending and demands a balanced budget. What is uniquely Chinese and therefore most significant about the letter, however, is its insistence upon the moral and political dangers involved in the public promulgation of legal norms. This view of law seems to have no real parallel in any other civilization. It should not surprise us that Shu-hsiang's letter is strongly Confucian in tone, notably in its use of such Confucian terms as yi, li, hsin and jen. For though Confucius was but fifteen when the letter was written, these terms and the ideas they connoted were surely already "in the air" when he was young, and were not complete innovations with himself. 5. CONFUCIANS AND LEGALISTS Though Shu-hsiang himself cannot be formally accounted a Confucian, his letter nevertheless epitomizes what may be termed the "purist" Confucian view of law. As we shall see shortly, the Confucians were staunch upholders of the traditional "feudal" scale of values. Hence it is natural that they should be bitterly hostile to the new law, especially in its early stages. Later, however, as it became increasingly apparent that law had come to stay, the Confucians softened their attitude to the point where they accepted law-although grudgingly-as a necessary evil. Even then, however, they remained Confucian in their insistence that the public enacting of law is not necessary in the ideal state, and that even in the inferior administrations of their own times, government by law should always be kept secondary to government by moral precept and example.81 Opposed to the Confucians were men who, because of their ardent advocacy of law, eventually came to be known as the Legalists or School of Law (Fa Chia). Most of them were less theoretical thinkers than tough-minded men of affairs who, as administrators, diplomats, and political economists, sought employment from whatever state would use their services. Their aim was direct and simple: to create a political and military apparatus powerful enough to suppress feudal privilege at home, expand the state's territories abroad, and eventually weld all the rival kingdoms into a single empire. Toward this goal they were ready to use every political, military, economic and diplomatic technique at their disposal. Their insistence on law, therefore, was motivated by no concern for "human rights," but simply by the realization that law was essential for effectively controlling the growing populations under their jurisdiction. In thinking and techniques they were genuine totalitarians, concerned with men in the mass, in contrast to the Confucians, for whom individual, family, or local community were of paramount importance. Yet it would be unfair to regard them merely as unscrupulous power-hungry politicians, for they sincerely believed that only through total methods could eventual peace and unity be brought to their war-torn world. If asked why they did what they did, they would no doubt have echoed Tzu-ch'an's dictum: "My object is to save the present age." 6. CONFUCIAN VIEWS OF LI AND LAW As against the Legalists' fa or law, the key Confucian term is ii. This is a word with an extraordinarily wide range of meanings. In its narrow- 31 This shift in Confucian attitude, which it is easy to overlook, is rightly stressed by T'ung-tsu Ch'iu, Law and Society in Traditional China (cited in note 1), chap. 6, sect. 3, "The Confucianization of Law," pp. 267 f. This content downloaded by the authorized user from 192.168.82.206 on Thu, 15 Nov 2012 17:03:52 PM All use subject to JSTOR Terms and Conditions