Abstract
In this chapter, I begin with an acknowledgment of the differences between Han Fei’s political discourse and that of Confucians. In particular, the Confucians believed in the political efficacy of the transformative power of the ruler’s Virtue. Han Fei, in contrast, regards Virtue as exceedingly rare and impractical. However, despite these substantive disagreements, I contend that both Confucianism and Legalism have a place in today’s society. On the one hand, we would hope that the Director of the Federal Bureau of Investigations will “do the tasks that have been assigned to [him or her]—and resolutely to refuse to do anything else,” just as Han Fei’s Supervisors of the Hat and Robe should stick to their own responsibilities and not meddle with anyone else’s. On the other hand, laws need to be interpreted: “Judges and juries must apply concepts like ‘informed consent,’ ‘reasonable doubt’ and ‘preponderance of evidence.’ And when they apply these concepts they are exercising wisdom” (emphasis in original). A little bit of virtue helps.
I am very grateful to Paul R. Goldin, Eirik L. Harris, Justin Tiwald and two anonymous referees for feedback on earlier versions of this paper.
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Notes
- 1.
In the Eastern Zhou, “de” is not normally used as a countable noun to refer to individual virtues. However, we do see this use by the end of the classical period. See, for example, The Mean 20: “Wisdom, goodness and courage: these three are the universal virtues of the world” (Gardner 2007: 120).
- 2.
The current Pole Star is Polaris. However, due to the precession of the Earth’s axis, Polaris did not occupy the Celestial North Pole in the time of Confucius. I concur with Joseph Needham that, during the Eastern Zhou dynasty, Kochab (Beta Ursae Minoris) was the Pole Star (Needham 1959: 361). However, David Pankenier has made the intriguing suggestion that Kochab was too far from the Celestial Pole during the Spring and Autumn period to have been regarded as the Pole Star. He argues that there was no recognized Pole Star during this era, so Confucius’s “use of the term bei chen [北辰 North Star] is not intended to be astronomically accurate, but refers in a more conventional way to the centrality of the most prominent circumpolar asterism, the northern dipper …” (Pankenier 2004: 212n5). Bruce and Taeko Brooks draw our attention to what is perhaps most important about Analects 2.1: “Whether we imagine a polar void or (as the text seems to require) a polar star, the thrust of the saying is the magical power of inactivity [wu wei 無為]” (Brooks and Brooks 1998: 109).
- 3.
This is a philosophically loose explanation, designed to be intuitive to readers unfamiliar with these distinctions. To be more technical, in my example I contrasted (1) Confucius as relativist and generalist with (2) Confucius as a non-relativist particularist. But these are not the only possible combinations. For example, Confucius could be a relativist and a particularist. My point is simply that relativism does not entail particularism, and particularism does not entail relativism. So we cannot use the undeniable evidence that Confucius is a particularist (such as Analects 11.22) as evidence for the conclusion that he was a relativist (for which I see no textual evidence).
- 4.
Consider the famous “cap of linen” vs. “cap of silk” example from 9.3. However, Mencius provides far more examples of this antinomian particularism than does Confucius. See, for example, the famous “drowning sister-in-law” example from 4A.17. For a thoughtful examination of the significance of this passage for later Confucianism, see (Wei 1986).
- 5.
Administrative technique also encompasses the evaluation of specific policy proposals by government ministers: if a minister proposes to do A in order to achieve B, he is rewarded for achieving B, punished for failing to achieve B, but also punished for achieving C, if C was not part of original proposal.
- 6.
Paul R. Goldin suggests that gong refers to “the self-interest of the ruler” rather than the public interest (Goldin 2005: 59). Goldin argues that Han Fei’s use of gong must have been closely related to its original meaning as duke or ruler (hence derivatively the interests of the ruler) (Goldin 2005: 185n6). This is an intriguing argument. However, names for social roles (“duke,” “father,” etc.) typically carry with them connotations of the responsibilities that go with that role, which need not be identical with the interests of the individual who occupies that role. This is why it has content for Confucius to say: “Let the ruler be a ruler, let the minister be a minister, let the father be a father, let the son be a son” (Analects 12.11). The interests of a duke qua duke are identical with the interests of the state.
- 7.
The “altars of soil and millet” is a common synecdoche for the state as a whole.
- 8.
I agree with Eirik L. Harris that neither legal positivism nor natural law theory is adequate for categorizing Han Fei’s philosophy (Harris 2011). Harris also argues that it is more accurate to state that Han Fei recognizes “political normativity” in distinction from “moral normativity.”
- 9.
David Wong has noted that Wittgenstein’s insight can be used to defend some version of Confucian particularism (Wong 2002).
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Van Norden, B.W. (2013). Han Fei and Confucianism: Toward a Synthesis. In: Goldin, P. (eds) Dao Companion to the Philosophy of Han Fei. Dao Companions to Chinese Philosophy. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4318-2_7
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