The Role of Punishment and Rhetoric in a Post-Legalism Age

By Carlisle Micallef (PZ ‘18)

Legalism holds that human beings are inherently selfish and ought to be governed using to harsh, cruel punishments. It is a philosophy that actively advocated for using fear to control the masses. Legalism served as the governing ideology of the Qin dynasty but was quickly abandoned and actively rejected by the following Han dynasty. Han Feizi (c. 280-233 B.C.E) is considered to be the last major thinker of the pre-Qin period. His thought laid the ideological foundations for the Legalism wielded by the Qin dynasty (221-206 B.C.E). Recognizing that the harmonious desires of his Daoist and Confucian counterparts were unrealistic, Han Feizi’s philosophy took a more practical and a moral approach to law and governance. He saw his sociopolitical environment as one where a person’s security was under constant threat by both superiors and inferiors. Thus, the central themes of his work include ensuring that the emperor concentrates all the power within himself, being wary of unscrupulous ministers, and using the two handles of favor and punishment to retain power.

Post-Qin dynasty scholars had hoped that philosophies such as Han Feizi’s would remain a relic of the Qin dynasty. However, Han Feizi’s influence on the use of law to control society proved resilient. In the Han dynasty, author and historian Ban Gu (32-92 C.E.) wrote and compiled sections of the Book of Han—a written history of the Han dynasty and the dynasties preceding it. After retelling the histories of each dynasty, he finishes his piece with a final policy proposal to reform punishment codes. Despite the Han dynasty’s rejection of Legalism and its embrace of Confucianism, Han Feizi’s philosophy permeated throughout Ban Gu’s work. By exploring volume twenty-three of the Book of Han, one realizes that Han Feizi’s influence goes much deeper than Ban Gu’s contemporaries realize. Not only is Han Feizi’s influence apparent in Ban Gu’s response to the legal dilemmas of his time, but also in the rhetorical techniques that he uses to present them. Han Feizi’s rhetoric is able to transcend his period and shape the role of law as a tool at the emperor’s disposal that can be wielded and changed in order to appropriately guide society.

       Ban Gu retells Chinese history, specifically highlighting the state of the law during each period, in order to establish a correlation between the use of corporal punishment and the overall moral health of society at the time. He begins by describing the mythical Three Sovereigns and Five Emperors as ideal sage-kings whose kingdoms had achieved societal perfection. During this era, sages of antiquity ruled their kingdoms as the first to “practice the virtues of respectful deference and universal love”[1] and lay the structural foundation for the society and family. They instituted the Rules of Ceremonious Behavior in order to give preeminence to respect as well as the Five Punishments to show their awe-inspiring might.”[2] These ceremonies are the foundation for what would later constitute Confucian ritual and the role of law in those societal norms. The Five Punishments wielded by the sages of antiquity are believed to have “emulated the killing and destruction of heaven’s thunder and lightning.” These laws and punishments are described as gentle, benevolent and harmonious, even imitating the actions of heaven itself.[3] Despite the fact that these punishments were founded during this period, Ban Gu states that they were not needed to maintain the virtue of the governed. In fact, they were rarely used.[4] Instead, the sheer awe that the people held for the sages and the ceremonious behavioral norms were sufficient to maintain a harmonious society. The rarity of the punishments’ use is a reflection of the society’s proximity to the Way—or the degree of perfection—during that time. Here, Ban Gu establishes a correlative relationship between the use of punishment and the overall health of the society. This correlation will continue to be used in his explication of each following dynasty. The Three Dynasties period exists in sharp contrast to that of the Qin Dynasty where punishment is used to unjustly terrify the people rather than guide their behavior toward the Way.

The Qin dynasty is described by Ban Gu as being a period of severe societal degradation. It is explained as an administration that promotes “cruel and harsh” leaders while rewarding unrestrained violence and misguided chaos. These qualities are reflected in the military generals that led the Qin’s assault on neighboring regions. Ban Gu describes generals such as Po Chi and Wang Chien as being “wolfish” in the practice of war, flamboyantly “flourishing their claws and teeth.”[5] Ban Gu continues, “they went to such extremes in fighting and in deceit, that the nobles nor the people attached themselves to them and even people like soldiers and bondsmen became their opponents and enemies. They arose like subbed squalls and gathered like clouds, effectively crushing them together.” [6] The Qin dynasty used greed and ruthlessness to such a degree that it naturally broke down the hierarchical institutions, creating a society that seemed to essentially consume itself.

In addition to their structural breakdown, the Qin period’s application of punishments is equally alarming. They chose not to use punishment based on the traditions of goodness and righteousness. Instead, they harnessed the power of punishments to oppress the population and used the people’s fear to add to their own power. When the Qin leaders are finally defeated and beheaded, it is described by Ban Gu as the ultimate form of the “power of retribution.” [7] In his treatment of punishment, it is not the punishments itself that affects the moral health of the society, but rather how and why these punishments are wielded. Punishment ought to be a useful tool to steer a population toward righteousness, but it must not be overused to the point that it deconstructs the very societal structures it is meant to uphold. Ban Gu uses the Qin dynasty as a warning against wielding misguided punishment frequently and, in the process, Ban Gu antagonizes Legalism altogether. A kingdom walks a fine line between using punishments to control people’s behavior to achieve virtue versus to instill fear for the sake of war and power. By emphasizing the role of punishment in the Qin dynasty’s fall, Ban Gu makes a case for emperors to pay close attention to the impact of punishments for the sake of their dynasty’s success. The ruler’s ability to correctly wield the influential powers of punishment is a reflection of the virtue of the ruler.

Ban Gu’s historical narrative shows how each dynasty wielded law and punishment to achieve the rulers’ prerogatives. More importantly, the way punishment is wielded by a kingdom reflects the degree of societal degradation being experienced at that time. Punishments are a product and crucial element of the state’s function. When wielded correctly, the punishments have a “civilizing influence.” The necessity of their use goes undisputed: Ban Gu writes that “mutilating punishments nor other punishments may be laid aside in the state.”[8] However, they can prove to go against Heaven and nature through their poor or unproductive application.” [9] Using this understanding, the Han dynasty underwent various periods of severe and relaxed applications of punishment in order to strike the best combination of enforcement and righteousness.

       When the Han dynasty was first established, it wielded punishments that were heavily influenced by the Legalism of the Qin dynasty. Thus, the Han dynasty underwent several periods of legal reform, oftentimes rewriting the punishments to make them more merciful. For example, during the first year of Emperor Hsia-Ching’s rein, an edict was issued that lessened the use of caning, insisting that it was no different from capital punishment, as recipients of the punishment often perished in the process or were no longer able to function in society.[10]

After various edits, the Han dynasty faced a new development within the law that threatened the righteousness of punishment. The Han laws and punishments had grown to over four hundred articles on the death penalty and thousands of judicial precedents for crimes. The combination of an overwhelming amount of legal literature and more relaxed punishments led to rampant corruption. Villainous ministers were able to make a profit by examining legal literature to find a diversity of precedents that were set in previous cases. These ministers would then help people receive a less severe punishment for their crime in exchange for payment. In this environment, one’s ability to access and pay ministers was arguably the greatest influence on one’s punishment. Thus, the punishments transformed and became class conscious. Emperor Hsiao-Yuan aptly summarizes the law’s ineffectiveness in an edict that reads, “at present, the Statutes are vexatiously numerous and not concise. When starting from those who are in charge of these documents, people are unable to distinguish and understand them, to desire to catch the instances when the great multitude of the people cannot attain a proper understanding of them, could hardly be according to the idea of punishments being fitting.” [11] To solve this problem, the government drastically shortened the legal literature and removed many of the laws and precedents that were being wielded through corruption.

These various shifts and edits in the law throughout the Han dynasty show how the dynasty dealt with many of the same issues that are explored in Han Feizi’s work. Rulings based on precedent granted Han dynasty ministers significant power over the law. In these situations, the emperor is cut off from the judicial process as the various edicts and laws coming from his office are curbed when filtered through ministers. Han Feizi also wrote his works during a time when the emperor’s influence was threatened by unscrupulous ministers who could use their positions to hoard power and resources for himself, threatening the emperor’s supremacy, or curtail an edict’s implementation to better serve the minister’s personal goals. He writes: “thus a ruler of men can be blocked in five ways: When a minister shuts off his ruler from others…When a minister controls the wealth and benefits of the state…When a minister usurps the power to issue commands..[and] when a minister is able to carry out righteousness…” [12] Han Feizi warns against flexible administrative hierarchies that allow ministers to be opportunists and garner influence for themselves, while leaving the ruler ignorant to the corruption that is flourishing beneath him.

       During the first century when Ban Gu wrote this legal history of the Han dynasty, he describes the dynasty to be faced with a balancing act. Because the Han dynasty follows the debased Zhou and Qin dynasties, the moral content of the Han dynasty is inevitably less elevated. Thus, despite the various Confucian reforms instigated over the course of the first 200 years of the dynasty, there has been an ultimate failure to return a virtuous composition. For Ban Gu, despite his reverence for Confucian practices, Confucianism on its own has not been effective nor transformative enough. He explains, “when morals are even less elevated than those of the Three Dynasties, to try and drive a vicious horse by means of a halter; it is going against what is needed to succor the times.” [13] However, Ban Gu is torn between recommending a more legalistic or more relaxed treatment of punishment for his era. He attributes the frequent criminality of his era to be a result of the deterioration of the Confucian ritual. But rather than prescribing Confucian solutions, such as the reinstatement of stricter ritual standards, his proposal takes a more legalistic approach similar to that of Han Feizi’s in his works. Ban Gu turns to more severe punishments and the use of fear to control the immoral individuals in society.

Ban Gu believes that more severe forms of punishment could easily overprescribe punishment and cause his society to further digress from the Way. In his current system, if the punishments were to “[move] away one degree from the punishment of ‘shaving the head and wearing an iron collar”, one enters unexpectedly into the category of supreme penalty.” [14] If capital punishment becomes overprescribed, then alterations to the law will fail to preserve the people both physically and morally. However, there is also a consensus that punishments as they stand are not effective in deterring immoral behavior. In the cases of theft, breaking and entering, adultery, and corruption for example, the same punishment of “‘shaving the head and wearing an iron collar’ is far from sufficient to repress them.” These light punishments that do not fit the crime cause the “people [to not] stand in awe and have even less sense of shame.” [15]

Although the Legalist school is largely extinct during this period, a Legalistic perception of why poor moral behavior persists prevails. Legalists such as Han Feizi believed that immorality reigns when laws and punishments are relaxed.[16] Though under the guise of a post Qin and post-Legalism era, Ban Gu grapples with how to, in Han Feizi’s words, “carefully take hold of the handles of punishment and reward to maintain firm control of them” [17] and lead the people to order.       In this, Han Feizi’s work in fact continues to covertly define the philosophy behind law.

To strike a middle ground, Ban Gu advocates that the emperor at the time enacts a reform that combines new and more merciful legal ideologies with older and less merciful ones. He suggests:
“One should edit and fix the Statutes and Ordinances, and compose two hundred paragraphs to correspond to the supreme penalty. As to the remaining degrees of crimes which anciently were equated with punishments leaving people alive but which at present bring people into contact with the death penalty, in all these cases the condemned man must be allowed to ask for the application of the mutilating punishments on his person.

Concerning wounding people and theft, officials receiving bribes and corrupting the law, men and women committing adultery and incest, for all these the old punishments should be revived, constituting all together three thousand paragraphs. Insignificant and petty laws aiming at connecting cases based on slanderous lies, should be completely abolished. In this way the punishments will be feared whilst people will easily avoid what is prohibited; officials will not concentrate on killing and the law will no longer have two applications; the lightness or severity of the punishments will correspond to the gravity of the crimes and the lives of the people will remain intact.” [18]

 

By enacting lighter punishments, he hopes that the law will more effectively punish those who pose a threat to the moral health of the society while relaxing those punishments that are dedicated to pettier crimes. Ban Gu, for example, recommends alternatives to caning (which often proved to be a lethal punishment) so that the convicted may request tattooing, amputation of the nose, amputation of the foot, and castration rather than hundreds of lashes of a bamboo cane. This way fewer people are killed in the process of receiving non-capital punishments. Other portions of this policy proposal suggest dramatically increasing the literature dedicated to severe crimes. This change would therefore increase the “old law” literature in hopes of squashing those who threaten the society as a whole. Ban Gu realized, just as Han Feizi did before him, that the fear that unforgiving laws instill has the more persuasive power to dissuade the “intelligent and wise” from using “trickery.” [19] In his suggestions, Ban Gu harnesses Han Feizi’s two handles, favor and punishment, to return order to the society. He resorts to relying on practical punishments to lead the Han dynasty’s people back toward the Way—a goal that diverges quite significantly from Han Feizi’s. Ironically, Ban Gu sees societal harmony being attained through legalistic measures: eradicating problematic criminals and practices in order for the rest of society to use Confucian ritual to rediscover balance. Because Ban Gu’s reforms spare the pettier criminals, he also relies on Confucian restorative methods to treat the less severe divergences from Confucian ideals. While his historiography presents Legalism and Confucianism as opposites, Bang Gu’s policy recommendation offers that they are potentially complementary. When one examines how these reforms would be implemented, Han Feizi’s governing methodology is further exposed. Under Ban Gu’s new power dynamic, simplistic laws are what judge a criminal and condemn him or her to punishment. While ministers and judges are still the ones who formally enact these punishments, these ministers are much less powerful than in the earlier Han legal practices. Because the laws have been condensed and simplified, there is less subjective leeway for the ministers to use their personal bias, beliefs and opinions. The codified laws thus replace the historical, interpretive role of ministers. Ban Gu’s perception of the emperor’s role in managing the punishments now fits neatly into Han Feizi’s approach to managing ministers. In Han Feizi’s thought, the enlightened ruler is someone who is able to establish a clear power dynamic between himself and his ministers. [20] Using an elusive persona and the wielding of harsh punishments, an emperor can govern his kingdom though ministers, doing little of the work himself. Thus, a successful kingdom is a testament to the emperor’s ability to execute the role of the puppet master. Similar to Han Feizi, Ban Gu wants to sets up an administrative structure where the king himself has to do very little to ensure just practice within his kingdom. Only for Ban Gu, it is the laws and punishments that do the most governing.

The removal of ministers’ subjective influence on punishment removes them from positions of power. This change stems out of Ban Gu’s weariness of the corruption that manifested in the earlier years of the Han dynasty. Ban Gu, like Han Feizi, exhibits a clear distrust of influential judges and ministers and believes that unifying edicts and decrees will greatly decrease corruption.[21] When Ban Gu’s distrust of ministers becomes codified in the simplified laws, the human element is taken out of distributing justice. At the same time, Ban Gu’s recommended reform re-centralizes power in the hands of the ruler and specific appointed ministers— specifically the ones who draft the law. Ban Gu uptakes Han Feizi’s recommendation of using a combination of Han Feizi’s governing models: Shen Buhai’s administrative methods and Gongsun Yang’s emphasis on laws. [22] By instilling a considerable amount of power in those who draft the laws, Ban Gu essentially suggests administrative methods that assign offices based on one’s qualifications. In his continued emphasis on law, Ban Gu applies Gongsun Yang’s emphasis on “manipulat[ing] the handles of life and death.” [23]

Han Feizi’s covert influence is clear in Ban Gu’s presentation of his scholarship and final policy recommendation. Ban Gu uses many of Han Feizi’s persuasion tactics to increase the likelihood that his recommendations will be implemented. Han Feizi, a founding father of rhetoric in Chinese society, wrote that knowledge about whom one is speaking to is at times more important than the content of one’s message. [24] With this knowledge, an orator (specifically a minister) can “highlight those qualities of which the person being persuaded is proud, while eliminating those of which they are ashamed.”[25] Using this treatment, the orator is able to censor and angle their argument in a way that will be well received. For the minister of Han Feizi’s time, this advice is potentially life saving as ministers are vulnerable to the emperor’s whims, often facing punishment and execution for their words.

This thinking inspires Ban Gu to angle and disguise the persuasive elements of his argument as historical fact. If Ban Gu’s retelling of legal history is reframed as a preface to his succinct recommendations, one finds that it fits nicely into Han Feizi’s commentary on the art of persuasion. As shown above, Ban Gu’s retelling of history discusses punishment in relation to the overall success of the society. However, his historical narrative is also an element of his argument construction. He advocates for a causal relationship between his policy and societal harmony under the guise of factual history. In his emphasis on historical fact and societal success, Ban Gu taps into the desires of the ruler. He highlights the periods of peace and prosperity when the law is relaxed and the chaos that ensues during the periods when the law is stringent. He does this to convince the rulers that society can be heavily influenced by law ensuring that they will take his proposals seriously and recognize him as a qualified minister. By presenting this information as historical fact, Ban Gu removes his argument from the personal jurisdiction of the ruler; the ruler isn’t a position to debate historical fact. The historical narrative allows Ban Gu to soften his critique of his contemporary society and protect himself from potentially negative responses from his superiors. He is careful not to create a connection between the ruler’s treatment of the law to his troubled society. Rather, he presents the current state of society within the content of historical patterns and movements. Ban Gu is able use Han Feizi’s recommendations to make his proposal seem in the emperor’s best interest. Using the guise of historical fact, political bias is also disguised. Ban Gu positions his recommendation as an unbiased proposal “for peaceful [reception by] other parties within the state,” as Han Feizi would say, causing members of any opinion to “subtly” see his recommendation “in accord with [their] private interests.”[26] As Ban Gu follows Han Feizi’s philosophy, he is protected from the emperor’s wrath. Ban Gu’s careful choice of words and historical narrative make the emperor more likely to react positively to this proposal, increasing its chances of being implemented and Ban Gu’s chances of being used by the emperor once again in the future.

Han Feizi also recommends that an orator strike a balance of length to protect oneself from negative judgment, no matter the angle: “If you make too little of your project and only outline your ideas, he will say you are cowardly and do not dare to say everything that you have to say, but if you make too much of your project and go on and on about it, he will say that you are unmannered and arrogant.” [27] Using a retelling of history, Ban Gu is able to discover a loophole to give his argument the proper analytical support necessary to persuade his audience which keeping the policy length relatively shot. When Ban Gu presents his proposal, he does not need spend time explaining the logic behind his recommendation—history effectively does it for him. Thus his proposal can have the length of a short proposal, but have the strength and legitimacy of countless pieces of supporting evidence.

In his exploration of the historical emperor’s wielding of punishment, Ban Gu merges the roles of minister and historian. He uses historical evidence to legitimize his claims and finally compose a competitive proposal to reform the law code of his era. Analyzing Ban Gu’s writings illuminates how the dynastic histories were often manipulated to fit political endeavors and combine political discourse with philosophical and moral discourse. State governance entertained a host of political questions that examined the intersections between the material and moral health of a society. Furthermore, Ban Gu’s twenty-third volume of the Book of Han shows the legacies of Legalism in his incorporation of Han Feizi’s thought. Despite the Han dynasty’s violent rejection of the Qin dynasty’s Legalism, Han Feizi’s thoughts are already imbedded into state governance and argumentative prose. This speaks to Han Feizi’s influence as well as the covert legacies of Legalistic thought that persisted long after Legalism itself. While the Han dynasty self-identified as firmly Confucian, it actually combined both Legalistic and Confucian practices to maintain order and guide societal morality.

[1] Anthony François Paulus Hulsewé, Remnants of Han Law Volume I: Introductory Studies and an Annotated Translation of Chapters 22 and 23 of the History of the Former Han Dynasty, (Leiden, 1955), 312.

[2] Ibid.,.

[3] Ibid., 322.

[4] Ibid., 329..

[5] Ibid., 328.

[6] Ibid.,.

[7] Ibid.,.

[8] Ibid., 329.

[9] Ibid.,.

[10] Ibid., 337.

[11] Ibid., 339.

[12] Philip J. Ivanhoe and Bryan W. Van Norden, Readings in Classical Chinese Philosophy, Indianapolis, 2001), 316.

[13] Hulsewé, Remnants of Han Law, 348.

[14] Ibid.,348.

[15] Ibid., 348-349.

[16] Ivanhoe, Reading in Classical Chinese Philosophy, 315.

[17] Ibid, 315.

[18] Hulsewé, Remnants of Han Law, 349.

[19] Ivanhoe, Reading in Classical Chinese Philosophy, 321.

[20] Ibid., 320.

[21] Ibid., 337.

[22] Ibid., 336.

[23] Ibid.,.

[24] Ibid., 332.

[25] Ibid., 334.

[26] Ibid.,.

[27] Ibid., 333-334.

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