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 Conditions382 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 con￾tentiousness 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 in￾structions, dare I forget your great kindness ? This letter is eloquent testimony to the un￾changing spirit of conservatism throughout the ages. Shu-hsiang's criticisms of dike and canal building and of bigness in government are recog￾nizably 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, how￾ever, 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 let￾ter 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 epit￾omizes what may be termed the "purist" Confu￾cian view of law. As we shall see shortly, the Confucians were staunch upholders of the tradi￾tional "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, how￾ever, 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 admin￾istrations 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, be￾cause 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 theoreti￾cal thinkers than tough-minded men of affairs who, as administrators, diplomats, and political econo￾mists, sought employment from whatever state would use their services. Their aim was direct and simple: to create a political and military appa￾ratus 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 totali￾tarians, 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 poli￾ticians, 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 ob￾ject is to save the present age." 6. CONFUCIAN VIEWS OF LI AND LAW As against the Legalists' fa or law, the key Con￾fucian term is ii. This is a word with an extra￾ordinarily 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