Early in Chinese history, a number of political thinkers developed sophisticated arguments for relying on consistent application of laws rather than the personal discretion of political authorities to govern the state. In this episode, we explore the arguments of one of the early pioneers of this way of thinking, Shen Dao 慎到 (c. 350-275 BCE). We are joined by a leading expert on Shen Dao and Chinese Legalism, Eirik Lang Harris.
Key passages
Shen Dao, The Value of Law Itself (passage one)
君人者，舍法而以身治，則誅賞予奪，從君心出矣。然則受賞者雖當，望多無窮；受罰者雖當，望輕無已。君舍法，而以心裁輕重，則同功殊賞，同罪殊罰矣，怨之所由生也。是以分馬者之用策，分田者之用鉤，非以鉤策為過於人智也。所以去私塞怨也。故曰：大君任法而弗躬，則事斷於法矣。法之所加，各以其分，蒙其賞罰而無望於君也。是以怨不生而上下和矣。
When the lord of the people abandons the law and relies on himself to govern, then punishments and rewards as well as firings and hirings will arise out of the lord’s heart. If this is the case, then those who receive rewards, even if appropriate, will always expect more, and those who receive punishments, even if appropriate, will ceaselessly expect leniency. When the lord abandons the law and relies on his heart to make judgments about severity, then the same accomplishments will have different rewards while the same crimes will receive different punishments. It is from this that resentment arises. Thus, those who apportion horses draw lots, while those who apportion fields cast coins. It is not because coins or lots are wiser than men, but rather they are the means by which to get rid of private interests and block resentment. Therefore it is said, “Since a great lord employs the laws and does not personally act, affairs are decided by the law.” That which the law confers is such that each by means of its divisions receives their rewards and punishments and none expect [anything different] from their lord. Therefore, resentment does not arise and there is harmony between superior and subjects.
(Shengzi Fragments 6; Eirik Lang Harris’s translation, lines 61–65)
Shen Dao, Laws Come from Human Beings (not Heaven) (passage two)
法非從天下，非從地出，發於人間，合乎人心而已。治水者，茨防決塞，九州四海，相似如一，學之於水，不學之于禹也。
Law does not come down from heaven nor does it emerge from the earth. Rather, it comes from the human realm, according with the human heart, and that is all.
(Shengzi Fragments 8.51; Eirik Lang Harris’s translation, Q1)
Shen Dao, Against Private Morality
故有道之國，法立則私議不行，君立則賢者不尊。民一於君，事斷於法，是國之大道也。
Therefore, in states that have the Way, when the law is established, then private goodness will not be pursued. When a lord is established, then worthies will not be revered. People are united under the lord and affairs are decided by the law—this is the great Way of the state.
(Shengzi Fragments 8.5; Eirik Lang Harris’s translation, line 77)
Sources and phrases mentioned
- Eirik Lang Harris
- The Shenzi Fragments, a study and translation of the surviving works of Shen Dao, by Eirik Lang Harris
- Shen Dao 慎到 (c. 350-275 BCE)
- Legalism 法家 (sometimes called the “Fa School”)
- Han Feizi 韓非子 (c. 280-233 BCE)
- “flake” (in the colloquial English sense, someone who fails to fulfil basic commitments, also used as a verb, as in “flake out”)
- 勢 shi (positional power, power of position, circumstantial power)
- Lena Li (Li La 李拉), our amazing producer and sound engineer
- fa 法 (laws, public models, institutional rules)
- Xunzi 荀子 (3rd century BCE)
- Lord Shang 商君, a.k.a. Shang Yang商鞅 (c. 390-338 BCE)
- H.L.A. Hart (1907-1992, influential legal philosopher who wrote about the “open texture of the law”)
- “rule of law” (as contrasted with “rule of people”)
- The Huainanzi 淮南子 (a Han-dynasty text that might come closer to explicitly endorsing rule-of-law views. On this issue, see also Roger T. Ames, The Art of Rulership)
- Yu 禹 (the legendary sage-king credited with successfully controlling floods in ancient China)
- fa li 法立, “establishing the law”
- jun li 君立, “establishing the ruler”
- si yi 私議, “private goodness,” “private moral norms”
- yi fa qu fa 以法去法, “using the law to eliminate the law” (enforcing the laws so strictly and harshly that people always comply and officials no longer need to enforce it)
- Analects 13.18, the “Upright Gong” passage (discussed in detail in episode 13)
