Let’s take a brief trip back to China in this last second post about ancient political thoughts. This will be a short post as Legalism is pretty simple – but revolutionary. When you hear about what’s legal and what’s not, a common term to throw around, the classification originates from Legalism.

Historical Context

As usual, we begin with some background knowledge to lay the groundwork for explanations later – so that they would make much more sense. Remember Sun Tzu, the proponent of the Art of War? He rose in an era of warfare known as the Warring States Period. Legalism was conceptualized in this very same era. To recap, this era was defined by wars in bides to unify China. The one who did was China’s first emperor Qin Shi Huang. This idea of Legalism, similar to the Art of War, was conceptualized out of necessity. During times of war, internal stability is of utmost priority. Hence, the tendency for a more authoritarian approach was understandable. Legalism, advocated by Shang Yang, Shen Dao and Shen Buhai were early advocates but it was Han Fei Tzu who formalized the idea and put it into practice. 

Cynicism, the deviation from Confucianism

Legalists do not believe in leading by example, unlike Confucians. This is because leaders are at times not reliable – in my opinion, it is most of the time. This is because of the fundamental belief that men are inherently bad in nature. Confucians, on the other hand, think of men as inherently good, which makes them optimistic about leaders achieving their moral expectations. If you would take the time to think it through, which side would you be on?

Classification of Good and Evil

Although this isn’t new, Legalists see the world through a pair moral absolutist lenses. Their world is split into good and evil, metaphorically like a world of black and white.

Utilitarianism

Legalists principles also rest on the assumptions of Utilitarianism. Utilitarians assume that men seek to maximize pleasure and minimize pain. To legalist, the former often leads to acts of evil such as theft and murder. The latter? The latter is the weakness of men that legalists would use against by imposing strict laws.

Rule of Law over Moral Exemplars

A black-and-white view of the world (what is legal and what is not) coupled with the Utilitarian assumption that men seek to maximize pleasure (often leading to evil acts) and minimize pain leads to Legalism. This is why: Legalists advocate strict laws with disproportionately harsh punishments to deter men to do evil. They proclaim that it works because it is consistent with the Utilitarian principle: men seek to minimize pain. This also relieve the system of the variable x which is the moral qualities of ministers and the sovereign (which only has a certain probability of being ideal moral exemplars depending on how optimistic you are). What the legalists are saying is: here is a system that works 100% of the time because it takes the human variable out of the equation, why indulge in the uncertainty of system success in leader-centric ideas like Confucianism?

Checks on Government officials

If evil ministers enjoy safety and profit, this is the beginning of downfall – Han Fei Tzu

Legalism was also the first explicit proposal to impose checks on government officials to curb corruption. Championing the rule of law, legalists do not give exception to even those in power. Back then, of course, due to cultural reasons, the sovereign remained unchecked. Nonetheless, progress was made by imposing checks on ministers and harshly punishing corrupt officials. Today, we have progressed far from legalism back then to the legal option to impeach the highest office in any truly democratic countries.

Making Sense of Checks on Officals in a Warring China

The Sovereign needed to rely on his ministers to represent and translate his wills into tangible policies. This was vital to internal stability and to reduce the uncertainty that officials are not acting in the interest of the state, the rule of law in legalism can hold them accountable, hence making ministers more reliable in maintaining the internal stability of states in China that were shaken up by the turmoils of the wars.

Legacy

Legalism no doubt left a lasting legacy. It was not only adopted during the Qin Dynasty, it was also the first explicit proposal to emphasize rule of law over leadership. The rule of law is the fundamental element of the systems that we have today which makes them fair, just and less corrupted.

Criticisms

I have one very fundamental problem with the assumption of legalism. Legalists assume that people act to minimize pain. By advocating strict laws they are also assuming that criminals are rational committers of crime. Is that true? Did a man who strangled his wife to death in a dispute did it rationally? It was probably an emotional response instead as he probably did it in a fit of rage. I mean, what are the chances that he married someone that he intended to kill rationally? This kind of thought experiment remains valid even till today as we are discussing the abolition of death penalty. Death penalty, the harshest form of punishment, is no doubt one of the products of legalism. But the fact that most crimes are not committed under a cost-benefit analysis render legalists’ disproportionately harsh punishments unjustifiable. Today, countries that takes the reformative route to justice rather than deterrence are seeing a lower crime recommitment rate. So perhaps it is time to rethink about how we should conduct law and order. The system of checks on officials, however, remains a strong feature to preserve.

Conclusion

Legalism is basically the advocacy of the rule of law and checks on government officials to hold them accountable. It is a simple idea but a revolutionary one back then. It was adopted in the Qin Dynasty after China’s unification and is the precursor to the rule of law that we treasure so much today in our political and democratic systems. It, however, has questionable assumption about the rationality of criminals which puts its advocacy of harsh punishments at risk of being unjustifiable.

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