The Nonhistory of Legalism
Léon Vandermeersch. La Formation du Légisme. EFEO 1965
The first part of the following was posted to WSW on 25 Dec 2007, and the second part to CGC on the same date, a few minutes later.
You know how it is in the waning of the year, the season of good will: you sit around in a soft light reading Vandermeersch on Légisme. In the back of his book, on p295, Vandermeersch lists what he regards as primary sources (Ecrits présumés de l'époque préimpériale). As a check on where the Sinological conscience was in 1965, I will here run through that list. Meanwhile, give Vandermeersch credit: he is not one of these tone-deaf types whose first act with a transcribed Chinese syllable is to eliminate its tonemarks. Vandermeersch has tonemarks. They sometimes show him to have had peculiar ideas about the pronunciation of certain words, but hey, that is how we learn. If you never expose your ignorance, you will never acquire wisdom. The idea is to acquire wisdom. Your dignity is relatively of no account. Go, Léon.
Turning now to the history of law, we have, as presumptively pre-Imperial:
The Vandermeersch List
- Chun/Chyou. Right. Not that anyone ever actually reads it.
- Gungyang Jwan. A difficult case. There may have been a pre-Hàn proto-form; what we have is Hàn.
- Gulyang Jwan. Still more difficult; apparently parasitic on preceding.
- Gwandz. Right, except for the last few chapters, which are Hàn.
- Gwo Yw. Right, except for the Wu and Ywe chapters, which are later additions; one of them is Hàn.
- Han Feidz. Wrong. All but a core chapter was written in Hàn.
- Laudz. Right.
- Li Ji. Wrong. This is a Hàn compilation, only a few of whose constituents have pre-Hàn antecedents, and those antecedents have been edited by the LJ compilers. The entire collection is thus Imperially tainted. Any earlier versions are always preferable to their LJ counterparts.
- Lun Yw. Right, with the understanding that most of it is school addenda from the 04th and 03rd centuries, and reflects neither Confucius nor the period in which he lived.
- Lw-shr Chun/Chyou. Only the first 12 chapters (the Ji). The rest is from Chin.
- Mencius. Right, with the understanding that most of it is writings of the posthumous Mencian schools. The four chapters excised from the standard text by Jau Chi were still later.
- Mwodz. Right, with the understanding that most of it is school addenda from the 04th and 03rd centuries, and does not reflect Mwo Di or the world in which he lived. The last of the military chapters may conceivably be Hàn.
- Shang-jywn Shu. Right, except for the Hàn framing elements, with the understanding that none of it is by Lord Shang, and instead attests later Legalist thinking in Chin.
- Shvn Dau. What we have is a Hàn compilation, not an original work by Shvn Dau.
- Shr. Right, with the understanding that nearly all the material was collected or composed in the 05th and 04th centuries, and does not reflect the Jou Dynasty properly speaking. Instead, it represents late propaganda about the Jou Dynasty, which is not quite the same thing.
- Shu. Right, except of course that the "gu-wvn" Shu are later forgeries, and that, of the 29 "jin-wvn" chapters, only a few are pre-Imperial, and even those are not earlier than the 04th century.
- Sywndz. Right, except for the Imperial-period framing addenda.
- Yi Li. Most of it is from Han.
- Yi Jou Shu. Problematic. Probably includes some early (though not Jou) material.
- Jan-gwo Tsv. Fatally wrong. Nearly all of it is popular tales from Chin and Hàn, many of them completely fantastical - and at just the points of greatest legal history interest.
- Ju-shu Ji-nyen. The original was a construct of the late 04c. Whether we possess that original, and if so, how completely, is still under discussion.
- Jou Li = Jou Gwan. Wrong; an Imperial imaginative construct. Conflicts with Yi Li (qv)
- Jwangdz. Right, except for a few Hàn additions.
- Dzwo Jwan. Right, but it was written in the 04th century, and cannot, without disastrous effect on one's historical understanding be construed as information about Spring and Autumn.
In addition to these texts, Vandermeersch also gives entire credence to the work and persona of Li Kv (or Li Kwei), a supposed minister and reformer of Ngwei, whose writings are not presently extant. Both the writings and the existence of Li Kv had been shown by Pokora in 1959, six years before the publication of Vandermeersch's book, to be entirely mythical.
So, of the above listed 24 extant texts, only about 15 (two-thirds) are even predominantly pre-Imperial, and several of those are are treacherous if read as they conventionally are, that is, in terms of the time they purport to describe rather than the time in which they were written. (A work can be pre-imperial and still be phony; this is one thing that Karlgren imperfectly understood). Legalism is an important subject; it is arguably the most important subject in all of early Chinese history. But its treatment has been seriously compromised by indulging romantic ideas about the authenticity of manifestly precarious texts.
Two-thirds right. It's not especially encouraging.
And it has also been damaging. 15 years after Vandermeersch, in the lead article in the publication Leyden Studies in Sinology (Brill 1981), a solemn aegis if ever there was one, A F P Hulsewé had this to say about the history of law in China:
In his masterly study on the formation of Legalist ideas Professor Vandermeersch rightly stresses that there existed an ancient tradition of codification in many of the states that formed "la Chine antique;" the earliest date he mentions is the 7th century BC. There are references to early law codes in the Tso chuan as well as in other texts; the Chou li, for instance, refers to a code which covered 2500 crimes. The oldest text which mentions penal prescriptions is probably the chapter "The punishments of Lü," Lü hsing in the Shu ching, the Book of Documents; to this chapter modern scholars attribute a surprisingly early date, namely between the 8th and the 10th century BC. This chapter not only mentions 3000 punishable crimes, but it also refers to written texts that should be consulted. All these informations necessarily lead to the conclusion that it appears that the Chinese states possessed written penal laws at least since the 8th century BC and perhaps earlier; what the thinkers of the School of Law did several centuries later was to propagate the strict application of these laws.
All this is fiction, and not even pure fiction: it is fiction with a motive. The motive is to establish a spurious history, an orthodox pedigree, for what was in fact a new invention: codified law. That new invention was made as part of a long restructuring of the Chinese state, a process whose first beginnings were somewhere around 0500, and whose first triumph, the first long-range battle between modern style infantry armies - armies whose enormous daily cost could only be met by a structurally and fiscally reformed state - occurred in 0343. The rise of law was required by that political restructuring, and the rise of law is not intelligible except in the context of that political restructuring. And, consistently with this general observation, it is to the period between 0500 and 0300, and chiefly in the latter two-thirds of that period, that our only sound text and archaeological evidence for law codes and for regularized legal procedures consistently points.
It is somewhat depressing to realize that even now, another 27 years or one human generation later, an empirical survey of opinions about the sources for Chinese law would probably show the same Vandermeersch/Hulsewé mix of sound and treacherous material, and a similar fondness for the material at the treacherous end of that range. As William Dean Howells once said, in a different context, where are those who are interested in real life?
To the above, someone might reply: So what would be a better text base, and how should it be read? The answer to the second question is, Chronologically. The answers to the first question, as it seems to me at this moment, are the following, listed in chronological order:
- Chun/Chyou (0722-0481). Law and judicial procedures are conspicuous by their absence.
- Houma Oath Texts (c0495). A primitive pre-legal device shown in operation.
- Analects (0479-0249). Hints and reactions, but very few of them are from the 05c.
- Analects (0479-0249). A few reactions to, or more precisely against, the prevailing tendency of legal developments.
- Mwodz (04c-03c). The earliest chapters are a reaction against the statecraft of the time, and interesting for their implicit appeal not only to the concept of yi (rightfulness, social expectation), but for their assumption of an already functioning system of police-enforced public law.
- Gwandz. GZ 1-3, 7 together with Analects 12-13 give a hint of mid 04c issues. A second phase, GZ 4-6 etc, comes at the very end of the 04c.
- Baushan Texts (c0316). Once studied by Susan Weld, and awaiting a current champion. They show an advanced legal process already established and working in Chu. The GZ/LY hints imply a parallel development of judicial process in the north at about the same time. Consistent.
- Shvn Bu-hai (mid 04c person; sayings uncertain). Even less well preserved than Shvn Dau (next), but there is enough there to get at least an idea.
- Shvn Dau (mid to late 04c). One of the architects of later Legalism; a glimpse of his thought can be had from early quotes. The Han compilation of his sayings is not altogether reliable; it reflects a Han idea of Shvn Dau's contribution to their idea of Legalism. You see how the complexities can multiply. But it is precisely the job of scholarship to deal adroitly with complexities.
- Shang-jywn Shu. The earliest chapters are a reflection of second-phase Chi Legalist theory [Eastern], as assimilated in the West.
- Dzwo Jwan (04c, final phase c0312). Useful for the ideas which it wrongly projects back into earlier periods; those ideas certainly did exist in the 04c.
- Shr (05c-04c). Many of these poems have the purpose of providing cultural precedent for currently (04c) popular ideas; they are propaganda for the coming unified Chinese state.
- Shu (04c-03c). Many of these utterly fake speeches or tracts have the purpose of providing documentary precedent for currently (04c, 03c) popular but novel ideas.
- Mencius 1 (0320-c0310). Actual transcripts of one political theorist addressing rulers.
- Laudz / Dau/Dv Jing (04c-03c). Its middle section is strongly anti-Legal, and believes that laws merely create crime. Given the autocratic state under which the DDJ and all other texts and persons of the time were laboring, the description may well be accurate. We have a full length DDJ analysis in the works. Interacts interestingly with next:
- Sundz Art of War (mid to late 04c). The rules of war, the regulations governing camp and campaign, are of great importance as precedents for what happens in the rest of the country, the rest of the time. Nobody has ever pointed this out, so there is plenty of room for our forthcoming monograph on this text and the general early military tradition.
- Gwo Yw (c0300, except for the Wu and Ywe chapters), a prompt revision of the statecraft theory of the Dzwo Jwan, and literarily inspired (as were a number of works of this period) by the Dzwo Jwan. Like DJ, it attempts to read certain cultural desiderata, legal and antilegal, back into the past, but even further back into the past than does DJ. This is mere cultural make-believe, interesting only for the agenda of the author.
- Wu Chi (early 03c). Follows and attempts to complete the Sundz. Little analyzed, but important as showing that the tradition of military thought had somewhere to go, and indeed went there. So also with the Szma Fa and the Wei Lyaudz, not listed separately here, not to mention the Han military texts proper. In these and in the chronologically parallel civilian texts, we see a shift from the art of conquest to the art of rule, and from conciliation to compulsion as the basic tactic of the state in dealing with its own populace. These are very important mainthreads of early Chinese history.
- Later Mwodz, later Gwandz, most of Shang-jywn Shu.
- Later Mencius, later Analects
- Jwangdz (03c), a reaction against modern law and indeed modern society. Even when it turns to making models for society, this bunch of people tend to avoid law as a device; instead, the text often celebrates the breakers of conventional laws.
- DDJ was still being compiled in the first half of the 03c, and continues to reflect progress in that version of Dauist statecraft thinking.
- Sywndz (03c), the most Legalistically assimilated of the Confucians, attempts to substitute li (process) for law as such. This notion has a history going back to the middle 04c. Its not wholly suitable name in the Western secondary literature is "rites as rights."
- Yi Li 1-4 (as originally arranged; c0250). The original li compendium, applying only to the officer grade and setting down the behavior ideal applicable to the serving elite. Not a law code, but a culture code, the kind of thing that provides a model for "how things are done," including respect and restraint structures. Needs analysis by a legally sensitive person. Good luck finding one.
- Lw-shr Chun/Chyou 1-12 (0241), a liberal Western view, which accepts war but wants the resulting society to be more or less humane in its structure. Closet Mencianism. LSCC 13-26 are liberal persuasions of Chin date, tacked onto the preceding core.
- Shweihudi Documents (0217 and earlier). A priceless trove of papers from another law official (cf Baushan), which show the composite nature of Chin law (it included some statutes explicitly first promulgated in Ngwei), and also includes a little orientation pamphlet on how to be a good official. Here and at Baushan, we see a legal system which is only in part cumulative; each official had his own file of papers, his own copy of the General Statutes, and his personal case file.
Unless I am out of my count, the above list contains 24 texts (including inscriptional and manuscript texts), some of which admittedly appear at more than one place on the list. It may be taken as a suggested substitute for Vandermeersch's less critical list of 24. Together, and attributing their content to the period when they were written and not to the time they purport to describe, these texts give a very different picture of law, and for that matter of interstate relations, than can be had from the Vandermeersch list, and especially from the conventional way of reading the works on that list.
Chang had a go at the legal history of the Shang Dynasty, and Skosey took on the same task for Jou. Neither will pass muster as written. Those searching for the Spring and Autumn plus Warring States segment of legal history might be tempted to take up Vandermeersch. Just how perilous that natural thought would be, I hope to have briefly suggested above.
Three strikes and out. Legal history has yet to get itself out of the muck and into the air.
My final thought, not just for early China but in general, is that law is not a thing with an essence, whose history tends to unfold the same way in all cultures and periods. Law, as it seems to me, is best seen as one among many tools of the state. It is shaped by how those states or the respective cultures decide to accomplish certain results. What one culture does with law, another culture may achieve in another way. None of this is knowable a priori. All of it must be determined by inspection, by getting down on the ground with the evidence. The right evidence.
E Bruce Brooks
Warring States Project
University of Massachusetts at Amherst
21 Oct 2012 / Contact The Project / Exit to Home Page