Paul Kelley Vieth
Dr. Garret Olberding
Law and Punishment in Classical China, Greece, and Rome Final Paper: The Huang Lao School
of Thought
Spring 2013
It is the desire of regularly interactive humans to be in cooperation because the
alternative to cooperation is competition. Human competition is destructive and is called war.
Because humans are, by definition, wielders, of any set of humans there is a set of thinkers who
wield a set of ideas that wield a set of rulers who wield a set of administrators who wield a lay
congregation who wield tools. The thinkers’ desire to wield better rulers who desire to wield
more ministers who desire to rule more tool wielders who desire to wield better tools. In
accordance with nature which compels us to wield, better tools are those that promote survival
and not those that promote death. Thus humans desire cooperation, which exists in unity, and
not competition, which demands balkanization, because in unity thinkers have more things and
people to ponder, rulers have more administrators to wield, administrators have more peasants
to wield, and peasants are required to cohabitate with, rather than decimate, one another.
The Middle Kingdom following the collapse of the Zhou multi-state system was such a
1
set of regularly interactive humans seeking unity, ​and perpetually returning to it with each
successive dynastic stumble for over two millennia. Pines attributes this surprising longevity to
ideology, transcending realpolitik slightly in calling the Sinic empire “not only a military and
2
administrative but also an intellectual construct.” ​It follows that the period known as the
Warring States can also be characterized as one of Warring Schools and necessarily that the
unification sought by sovereigns cannot be seen as a militarily and bureaucratically forged
1
Yates, 7, agrees: “This condition of political fragmentation was not generally acceptable to the intellectual
elite . . .. Certainly, the Chinese at the time believed that they were living in an age of degeneration and
decline and they longed to return to a golden past, an age of “Great Peace” when the order and harmony of
unity under a single, politically powerful, and legitimate central authority prevailed in the world.”
2
Pines, 2.
contiguity, but an intellectually forged one as well. As the northwestern state of Qin became this
unifier, and as its imperial precedent would come to have millennium-spanning ramifications,
the ideological dispositions of its ruler are of great salience to Chinese political theory and
praxis. Why, then, are the Qin so crudely and without much consideration labeled as ‘pure’ or
‘strict’ or ‘realist’ legalists. The attribution of unsympathetic brute force conquest and
administration comes so naturally and frequently to the pens of historians of China that it need
neither be substantiated nor cited. To find such a statement, simply open any book with a single
paragraph pertaining to the Qin. I have chosen one by R.P. Peerenboom to be mischievous,
since he believes himself to have written the authoritative explanation of the characteristics of
the Huang-Lao school of thought. Of the relationship of the B
​oshu​
(recovered Huang-Lao silk
manuscripts from Mawangdui) and the Qin, Peerenboom says many contradictory things for
one paragraph: “. . . [T]he ​
Boshu​
never mentions the harsh Qin regime by name. . . . [T]he B
​oshu
is opposed to the austere Legalist policies of Qin. . . . [I]t is unlikely that someone would write a
work so critical of Qin’s Legalist policies during the height of Qin’s powers [during the reign of
3
Shi Huangdi]. Thus, the most likely date of composition is the late Warring States.” ​For
Peerenboom, somehow, the text is incredibly critical of Qin, but does not mention it by name
and is most critical of the ultimate Qin leader, but was written before his reign. For the topic of
his monograph and for his unwillingness to employ nuance, I wanted to quote Peerenboom
before saying that Qin Shi Huangdi was not a strict adherent of “austere legalism” in the manner
of Han Fei, and in fact demonstrated tendencies and made proclamations indicative of
Huang-Lao leanings.
Reasons why Qin Shi Huangdi was not a strict adherent of Han Fei’s Legalism
3
Peerenboom, 16-17
The writings of Han Fei, by his own admission, apply only to mediocre rulers. This does
not, of itself, mean that Shi Huangdi could not employ legalist philosophies, or that the
hypothetical rulers discussed by Han Fei could not be likened, in some regards, to Shi Huangdi.
What is important to keep in mind, however, is what Shi Huangdi believed himself to be
(certainly not mediocre) and, by extension, what philosophy he would have believed himself to
be representing. “Now, if we abandon authority,” says Han Fei,
turn back to law and wait for Yao and Shun, so that when Yao and Shun [sage
rulers] arrive there will be order, then in a thousand generations, one will be well
ruled. If we endorse the law and locate ourselves within the power of authority,
and then await Jie and Zhou [bad guys of Chinese mythology] so that when they
arrive there will be calamity, then in a thousand generations, one will be
calamitous. So to have one orderly generation among thousand calamitous ones
or to have on calamitous generation among thousand orderly ones—this is like
galloping on the thoroughbreds Ji and Er: the distance between them will be
4
great!
The implication, that it is better to prepare for a mediocre ruler, which, being the most common
type, will lead to overall stability punctuated by the calamity of the abuse legalism allows an
active and giftedly manipulative, albeit much rarer, ruler to inflict, is not difficult to garner
despite the exclusively Chinese tropes at play in the metaphor. The irony, that if Shi Huangdi
was an aficionado of Han Fei, he would have been, in Han Fei’s eyes, that rare despot able to
wield the handles of law abusively, would not have been lost on Shi Huangdi. Had he read this
passage, I doubt he would find Han Fei’s legalist philosophy the one most befitting his bid for
imperial unification.
5
Han Fei urged rulers to make haste designating their heirs. ​I have not read all of the
Han Fei, only what Burton Watson considers the ‘Basic Writings,’ but this dictum is a rather
universal one in the world of ​
realpolitik​
, and seems, from the secondary literature, to have been
4
5
Pines, 102.
Han Fei, ix.
batteringly pronounced in Han Fei’s writings. It need not be explained, only mentioned, that
Shi Huangdi neglected this tenet of the philosophy he supposedly embodied.
Legalism demanded strict and unwavering application of the laws. From the perspective
of post-Qin literati, the degree of strictness required was burdensomely excessive. For a more
rich account of Shi Huangdi’s contemporaneously relative penal moderation, see Vieth (2012).
For now, allow several accounts of the First Emperor’s granting amnesty for various crimes,
including treason, suffice to prove that the absolute standard (‘unwavering’-ness) of legalism in
application of the laws and punishments did not apply to the First Emperor. A man of the state
of Hann, Zheng Guo, came to Qin to supervise the construction of a canal. Upon finding out that
Zheng Guo’s intentions were to deprive Qin of manpower and funds, instead of executing the
man, Shi Huangdi allowed him to finish construction of the canal, pragmatically seeing past
6
blind adherence to punishments for the overall benefit of the state. ​A similar story unfolds
around a man named Wei Liao from Daliang, who had come with a proposal to bribe the
ministers of Qin’s colluding enemies so as to foil their plans. Shi Huangdi employed the man,
but soon discovered his foul intentions to pocket the bribery. Instead of executing him, which
the law would command, and absolutist legalism would expect, Shi Huangdi had him appointed
7
as a state commandant, and delegated the operation to Li Si. ​Shi Huangdi’s grant of amnesty to
the followers of Lao Ai is perhaps the most compelling example of his leniency. Lao Ai had, after
faking castration, become the lover of Shi Huangdi’s mother. Slowly acquiring land, rank, and
followers, Lao Ai attempted a coup on Xianyang while Huangdi was absent from the Qin capital.
Immediately following the averted disaster, Shi Huangdi had Lao Ai’s cortège exiled, when mass
6
7
Sima, 181.
38.
execution would have been perfectly acceptable and even practical within the reasoning of
8
realpolitik​
legalism. Furthermore, Shi Huangdi allowed the followers to return home.
There are two more extremely convincing dissonances between the actions of Shi
Huangdi and the notion that he employed strict legalism. First, though later regretting the
decision, Shi Huangdi had Han Fei executed. Though he was persuaded by Li Si to take this
course (perhaps a product of Li Si’s jealousy held from his and Han Fei’s days as peers under
Xunzi and the accompanying fear of being replaced, as the narrative paints Li Si’s motives), if
Shi Huangdi had been an utmost appreciator of Han Fei’s writings and, especially, if the First
Emperor believed legalism held the key to imperial unification, he would not have had Han Fei
executed under any circumstances. The second, less obvious in nature, is Shi Huangdi’s utter
failure to employ the legalist notion of “trust”, which is, in fact, better termed “mistrust”. In
Watson’s summary, according to Han Fei, a ruler “must eschew all impulses toward mercy and
affection and be guided solely by enlightened self-interest. Even his own friends and relations,
his own wife and children, Han Feizi warned, are not to be trusted, since all for one reason or
9
another stand to profit by his death.” ​If the closest of friends and relations cannot be trusted by
a ruler, certainly neither can the ministers. No other known thinker dared “to pronounce Han
Feizi’s harsh statements against the ruler’s entourage, identifying each on within the ruler’s
reach as potentially a mortal enemy of the monarch. Among a ruler’s enemies, the harshest and
most threatening are, precisely, the ministers . . ..”
10 ​
Shi Huangdi trusted his Prime Minister Li
Si resolutely: employing him upon the latter’s request; deciding against the expulsion of alien
scholars at the latter’s request (so obviously in the latter’s self-interest); agreeing with each and
every of the latter’s persuasions, including the execution of Han Fei, the refusal to enfeoff
8
39.
Han Fei, 11.
10
Pines, 100.
9
relatives and meritorious ministers, and the burning of the books. The enormity of the
consequences of Shi Huangdi’s trust in Li Si is told most compellingly by the latter’s
transgression of the First Emperor’s succession command, plotting with the eunuch Zhao Gao to
enthrone the youngest of Shi Huangdi’s sons, a move which would result in the mind-bogglingly
rapid dismantling of hundreds of years of territorial consolidation on behalf of Qin sovereigns.
11
It must be re-clarified, as I progress, that it is not my intention to say Shi Huangdi did not
employ legalist philosophies in general, those of Han Fei in particular, or especially rule of law
itself, only to contradict the seemingly universally accepted notion that Shi Huangdi was a ​
pure
or ​
strict​
or ​
absolutist ​
legalist, by highlighting some fundamentals of legalism which he directly
disregarded above, and, below, to highlight some principles which cannot be found in legalist
texts and, in fact, only in Huang-Lao thought, which the First Emperor clearly employed.
Reasons why Qin Shi Huangdi was more akin to a Huang-Lao adherent
For Peerenboom what distinguishes Huang-Lao from the rest of the ‘hundred schools’ is
12
its ​
foundational naturalism​
. ​According to his synthesis of Western natural law theory,
foundational naturalism requires law to be “grounded in some ultimate source of value that is
beyond further questioning,” “derived from some transcendent order or first principles that
determine the human order and are discovered by humans,” “held to be universal and
immutable,” and to not “change from context to context as the particular beliefs, customs, and
social institutions change.”
13 ​
It would be difficult to determine if the common ‘black-headed
person’ found the early Chinese imperial order to parallel or even derive from the cosmological
order. Since we cannot know how Shi Huangdi’s policies were received by his subjects (the
11
For the full expose on this tomfoolery, see Vieth 2012.
Peerenboom, 4.
13
Peerenboom, 21.
12
annals come to us from an unsympathetic Han historian 120 years after Shi Huangdi’s death),
we must rely on Shi Huangdi’s autobiographical panegyrics – the stele inscriptions. After all, if
Shi Huangdi were a strict legalist, believing the writings of Shang Yang and Han Fei alone to
hold the clues to harmonic unity, he would have no problem espousing those beliefs on his altars
of self-triumph and demonstrating his regime’s perfect application of them. Likewise, if he
employed the hypotheses of another of the hundred schools in his successful experiment in
empire creation, he would proclaim the glory of that school from sacred mountaintop on high.
When textually analyzing these steles, it is important to keep in mind that the various
schools employed similar vocabularies, and that what is determinant is not the isolated use of a
word or set of words (virtue, enlightenment, sage, Heaven and Earth, the Way, . . .), but the ends
14 ​
for which they are being employed, as Peerenboom also reminds us.”
The steles will
understandably contain numerous mentions to law and legalistic jargon. This does not
contradict my thesis, which attempts to reject the notion the Qin, and especially the First
Emperor, employed ​
purely​
or ​
strictly​
legalist ​
​
or r​
ealist​
philosophies. Indeed, Huang-Lao “on a
most general level, represents a synthesis of classical Daoism and Legalism.”
15 ​
On steles at
Liangfu and Zhifu it says: “His great principles are noble and pre-eminent, to be bestowed on
16
future generations, who will receive and honour them without change,” ​“His transforming
influence is unending, in ages after his decrees will be honoured, handed down forever with
17
gravest caution,” ​“Inner and outer concerns are carefully demarked, uniformly faultless and
18
pure, to be passed on to future heirs,” ​“Far and wide he dispensed his enlightened laws to bind
and regulate all under heaven, to stand as a model unending./ How great, that throughout the
14
Peerenboom, 3.
2.
16
Sima, 46.
17
Ibid.
18
Ibid.
15
19
whole universe the will of the sage should be heeded and obeyed,” ​demonstrating the
immutability and infallibility characteristic of foundational natural law and specifically
uncharacteristic of legalism, in which the law is writ from the command of the ruler, changing
with each succession.
Another of the components of foundational natural law which Peerenboom sees as
essential to Huang-Lao thought is accordance with and obedience to the natural/divine
pattern/order. In the terminology of classical China, from Sima Tan’s summary of the Yin-Yang
school, “[e]ach of the Yin-Yang four seasons, eight positions, the twelve degrees, and the
twenty-four solar nodes in the calendar have teachings and orders related to them. If you follow
them you grow glorious, if you oppose them, and do not die, then you are lost. . . . This is the
great constant order of the Way of Heaven; if you do not follow it, then there would be no way to
make rules and regulations for the world. Thus I say, “their giving precedence to general
compliance with the four seasons cannot be neglected.”
20 ​
Robin D.S. Yates, besides Peerenboom
the other writer of a major work whose titular focus is Huang-Lao, finds the role of Yin-Yang
thought to be the “extremely important element” missing from Csikszentmihalyi’s, Harold
Roth’s, John S. Major’s, and Anne Cheng’s interpretations of Huang-Lao.
21​
This cosmological
punctiliousness, characteristic of Huang-Lao and Yin-Yangism, and explicitly uncharacteristic of
Legalism, is greatly appreciated by Shi Huangdi. On the stele of Zhifu it says, “The bright virtue
of the August Emperor aligns and orders the whole universe; he sees and listens without tiring.”
Yates summarizes the ​
Jing Fa​
(Canon: Law), one of the four Huang-Lao silk manuscripts from
Mawangdui, as being “directed at the ruler of a state engaged in competition with rivals for the
domination of the world. The advice the text offers is that he must conform his actions to the
19
51.
Shiji​
​
, ch. 130, pp. 3289-90.
21
Yates, 10-12.
20
principles of Heaven and Earth and must forever observe and be constantly attuned to the
22
objective conditions of his own state and those of his rivals.” ​Shi Huangdi had his Epang palace
designed “in imitations of the way in which in the heavens a corridor leads from the Heavenly
23
Apex star across the Milky Way to the Royal Chamber star,” ​while another of the stele
inscriptions reads: “Wherever sun and moon shine, where ships and wheeled vehicles bear
cargo, all fulfil their allotted years, none who do not attain their goal./ To initiate projects in
season—such is the August Emperor’s way.”
24​
One component of Yin-Yangism is Five Phases
(or ‘Elements’) theory, by which earth, wood, metal, fire, and water, respectively, follow or
25
‘overcome’ one another. The phases correspond to dynastic transitions ​
, and Shi Huangdi
believed, “the Five Powers succeed each other in unending cycle, and he held that the Zhou
dynasty had ruled by the power of fire. Since the Qin had replaced the Zhou, its power should
therefore proceed from that which fire cannot overcome; the power of what had begun its era of
26
dominance.” ​Since black and 6 were the corresponding color and number of this phase, the
colors of all official regalia and units of all governmentally standardized weights, lengths, etc.
were made to be black and 6. After describing all of these superstitious changes, Sima Qian
summarizes Shi Huangdi’s disposition in this regard saying, “[o]nly by being stern and severe,
by settling all affairs in the light of the law, by cutting and slashing without mercy or gentleness,
he [the First Emperor] believed, could he ​
comply with the destiny decreed by the Five Powers​
.”
27
In this single sentence are the two components of Huang-Lao, via a description of the First
Emperor no less—compliance with the cosmological order and rule of law—most clearly
presented.
22
25.
Sima, 56.
24
47.
25
Nivison 809.
26
Sima, 43.
27
Ibid.
23
The final and most symbolic association between Shi Huangdi and Huang-Lao comes
from the latter’s adoption of Huangdi, the Yellow Emperor, the chosen “mythical sponsor for its
views.”
28 ​
The choice lies in the Yellow Emperor’s “symbolic value as the first ancestor of the
Chinese people who put an end to battling among the clans through military conquest and the
establishment of a centralized bureaucratic state replete with ministers, laws, and other such
29 ​
accoutrements of federal bureaucracy.”
For Peerenboom, three major themes pertaining to
the Yellow Emperor merit his attention: “the Yellow Emperor as originator of a centralized
bureaucratic state; the Yellow Emperor as sole ruler of an empire unified through military
conquest; the Yellow Emperor as ideal ruler.”
30 ​
From these lists it is not difficult to presume the
basis for Shi Huangdi’s fancying the icon. Shi Huangdi went to great lengths to associate himself
with the Yellow Emperor as well as the total set of ‘sage rulers’ known as the ‘Five Emperors’. In
a suasion of the First Emperor, Li Si chooses to play off what we can only assume is the First
Emperor’s desire to emulate the Yellow Emperor and tells him “[i]f one is lazy and fails to act
quickly, the feudal lords will recover their strength and join in an alliance against Qin, and then,
though one might be as worthy as the Yellow Emperor, he could never unite them.”
31​
Again,
when the stakes were desperate, for as a foreigner Li Si was in danger of being expelled from Qin
and was in this suasion defending his right to remain, he again calls on the Yellow Emperor to
affect Shi Huangdi: “Mt. Tai does not give away a grain of soil, and therefore it can become large.
The rivers and oceans do not refuse the tiniest trickle, and therefore the can become deep. . . .
His [the king’s] realm knows no distinction of east or west, north or south, his people no
distinction of native land. All four seasons for him are replete with beauty, and the gods and
spirits send down good fortune. This is why the Five Emperors and the kings of the Three
28
Peerenboom, 86.
Ibid.
30
Ibid.
31
Sima, 180.
29
32
Dynasties were without rivals.” ​​
In a note, Peerenboom points to three reasons for the strong
association between the First Emperor and Huangdi, all based on personal preference of the
former:
Huang-Lao thought contains a yin-yang element and the naturalist cosmology that
would later be developed into causal correlative cosmologies. Such cosmologies underlie
many of the late Warring States-early Han immortality practices of the fang shi and
other longevity seekers. This would also explain the popularity of the Yellow Emperor: it
was politically safe to cite the Yellow Emperor because he was connected with both
Legalist and immortality thought favored by Qin Shi Huang. I would add to Ding’s
insightful comments that the Yellow Emperor was traditionally portrayed as a
totalitarian ruler who unified the empire through military conquest (as discussed later).
Such an image must surely have appealed to Qin Shi Huang, who himself did precisely
33
that, as it would the rulers of Qi who usurped power.”
Shi Huangdi’s fascination, in fact, and safely, obsession with immortality need not be described
even to the marginally deep spelunker of early Chinese history. His numerous ‘academicians’,
their searches for herbs and immortals, and his own hunt of a manifestation of the water god
shortly before his death, bring the total citations of immortality references in the ​
Shiji ​
to a
34
staggering total.
What I have, at the beginning, complained of Peerenboom and the rest of Western
secondary-source one-sentence summarizations of Shi Huangdi, and have, throughout the rest
of the paper, myself done, is an exercise in futility. That is, it is ridiculous to apply the label of a
retroactively compiled political theory, written by one or by many, to the political reality of a
ruler. At the end of the day, even those who pen the most harmonizing of political theories
could not begin to put them into practice. The unification of China, regardless of the convenient
desires of Zhanguo thinkers or post-Qin imperial historians and their patrons, was not achieved
through the implementation of Legalism, Daoism, Ruism, Yin-Yangism, Moism, Sophism, or
any concoction of the above, but through the decisions of Qin rulers, ministers, and
32
183.
Peerenboom, 302.
34
Sima, 52, 53, 56, esp.
33
administrators, grappling in the courts for more-preferable proportions of influence. If the
imperial precedents set in 221 B.C. had the millennial ramifications we attribute to them, then
we must rid ourselves of the desperation to align theory and practice for the sake of our current
ideas’ neatness, concertedness, or retail value, for which personal gain we will indubitably
sacrifice the purity of our public knowledge.
Works Cited
Han Feizi. ​
Basic Writings​
. Translated by Burton Watson. New York: Columbia UP, 2003
Nivison, David Shepherd. “The Classical Philosophical Writings” In ​
The Cambridge History of
Ancient China, ​
745-812. Edited by Michael Loewe and Edward L. Shaughnessy.
Cambridge: UP, 1999.
Peerenboom, R.P. ​
Law and Morality in Ancient China: The Silk Manuscripts of Huang-Lao.
Albany, N.Y.: UP, 1993.
Pines, Yuri. ​
Envisioning Eternal Empire: Chinese Political Thought of the Warring States Era.
Honolulu: Hawaii UP, 2009.
Sima Qian. ​
Records of the Grand Historian: Qin Dynasty​
. Translated by Burton Watson. New
York: Columbia UP, 1993.
Yates, Robin D.S. ​
Five Lost Classics: Tao, Huang-Lao, and Yin-Yang in Han China​
. New York:
Ballantine, 1997.