- Chinese Legalism
- Korean Legalism
Legalism is an approach to the analysis of legal questions characterized by abstract logical reasoning focusing on the applicable legal text, such as a constitution, legislation, or case law, rather than on the social, economic, or political context.
In its narrower versions, legalism perpetuates the notion that the pre-existing body of authoritative legal materials already contains a uniquely pre-determined "right answer" to any legal problem that may arise; and that the task of the judge is to ascertain that uniquely predetermined answer by an essentially mechanical process.
This Western school of the application of laws has little connection to the Chinese philosophical school of the same name that is discussed from here on.
In Chinese History, legalism (Chinese: 法家; pinyin Fǎjiā) was one of the four main philosophic schools in the Spring and Autumn Period and the Warring States Period (Near the end of the Zhou dynasty from about the sixth century B.C. to about the third century B.C.). It is actually rather a pragmatic political philosophy, with maxims like "when the epoch changed, the ways changed" as its essential principle, than a jurisprudence. In this context, "legalism" here can bear the meaning of "political philosophy that uphold the rule of law" and thus, distinguished from the word's Western sense. Hanfeizi believed that a ruler should govern his subjects by the following trinity:
- Fa (Chinese: 法; pinyin: fǎ): law or principle. The law code must be clearly written and made public. All people under the ruler were equal before the law. Laws should reward those who obey them and punish accordingly those who dare to break them. Thus it is guaranteed that actions taken is systemically predictable. In addition, the system of law ran the state, not the ruler. If the law is successfully enforced, even a weak ruler will be strong.
- Shu (Chinese: 術; pinyin: shù): method, tactic or art. Special tactics and "secrets" are to be employed by the ruler to make sure others don't take over control of the state. Especially important is that no one can fathom the ruler's motivations, and thus no one can know which behaviour might help them getting ahead; except for following the fa or laws.
- Shi (Chinese: 勢; pinyin: shì): legitimacy, power or charisma. It is the position of the ruler, not the ruler himself, that holds the power. Therefore, analysis of the trend, the context and the facts are essential for a real ruler.
Legalism was the central governing idea of the Qin Dynasty, culminating in the unification of China under the 'First Emperor' (Qin Shi Huang). This is the ruler featured in the 2002 movie Hero, and several other films.
Most Chinese philosophers and political thinkers have had very negative views toward Legalism blaming it for what today would be considered a totalitarian society. Many Chinese scholars believe that it was a reaction against legalism that gave Chinese Imperial politics its personalistic and moralistic flavor rather than emphasis on the rule of law. However, this view of the Qin may be biased, as most of the Chinese historical records were written by Confucian scholars, who were persecuted under the Qin.
In later dynasties, Legalism was discredited and ceased to be an independent school of thought. However, both ancient and modern observers of Chinese politics have argued that some Legalist ideas have merged with mainstream Confucianism and still have a role to play in government.
More recently, Mao Zedong, who had some knowledge of ancient Chinese philosophy, compared himself with Qin Shi Huang and publicly approved of some Legalist methods. However, since the 1990s the related concept of the rule of law has gained currency.
The Confucian thinker Xun Zi is sometimes considered as being influenced by or having nourished Legalist ideas, mostly because two of his disciples (Li Si and Han Fei Zi) were strict Legalists.
The history of Korea's legalism is traced to the Gyeonggukdaejeon, a law book compiled in the Joseon dynasty. There is a mixed perception of legalism within South Korean society, as the post-WWII military regime used the idea of legalism as a tool of its governance. The ideas are related to Chinese legalism, but often distinguished because of Korean distaste for what they see as Chinese use of legalism in attempting to legitimize Han imperialism.1
- Graham, A.C., Disputers of the TAO: Philosophical Argument in Ancient China (Open Court 1993). ISBN 0812690877
1- Song Dae-keun, "Use Legalism to Govern the Nation." Dong-a Ilbo, January 2, 2006