The availability heuristic is a tendency to overestimate the frequency of an occurrence based on how easily examples come to mind. This type of logic is flawed—we might more easily remember vivid examples even if those occurrences are objectively rare. History is not immune to the availability heuristic, giving undue weight to written materials. That effect becomes pronounced with translations. When only select works are translated, the translated works naturally cast an overwhelming shadow on the untranslated corpus. In the West, popular translations of Chinese philosophy have largely been translations of Confucius, the Dao De Jing, the Book of Changes, and Sun Tzu’s Art of War (frequently relegated to strategy, or worse, business). Inherent difficulties in the translation of certain Chinese concepts, along with early translators’ interest in using the mystical/spiritual “East” as a way to criticize the rational/analytical “West,” have created the impression that Chinese philosophy is a wisdom tradition, rather than true philosophy. Christoph Harbsmeier’s recent translation of Han Feizi, a collection of writings offering advice to rulers attributed to the Legalist philosopher Han Fei (280–233 BC), brings into the light a serious challenge to that cliché. Instead, we find in Han Feizi arguments for the rule of law and the channeling of man’s natural selfishness (rather than trying to change it), anticipating major themes in Western thought not developed until centuries later.
One of the more subversive surprises in Han Feizi is its relentless criticism of Confucianism, which would go on to become state orthodoxy. Broadly speaking, Confucianism is a form of virtue ethics that sought to revive a golden antiquity by re-teaching society the twin values of humaneness and proper etiquette. While Confucianism stressed the importance of educated, virtuous advisers, Han Feizi frets that to “esteem gentlemen who are adept in literary studies,” would make “orderly rule and a strong state” “unobtainable.” Confucius’s advice to “govern through generosity” is sneered at by Han Feizi as “the sort of speech that ruins a state,” that would “wreck the rule of law,” and cause “chaotic administration.” Confucians are characterized by Han Feizi as “shamans and invocators,” who naively “keep talking about the achievements of good governance in the past,” instead of examining “the business of offices and laws” or the “facts of wickedness and depravity.”
In contrast to Confucius’s quest to return to a golden antiquity by reviving its etiquette, Han Feizi takes the view that “past and present have different customs, new times and former times require different precautions.” Han Feizi daringly asserts that “benevolence and righteousness had their use in antiquity but are not useful in our times.” Indeed, Han Feizi claims that the ancients “thought little of material goods … not because they were benevolent, but because material goods were in abundance. And if today people compete and struggle, this is not because they are coarse, but because material goods are scarce.” Han Feizi had a similar explanation for why legendary kings, venerated by Confucians, would voluntarily abdicate their thrones. It was not because ancients “were high-minded, but because the advantages of that positional power were meagre.” In Han Feizi’s view, a sage-like ruler should set harsh fines and punishments to “adopt … to the customs” of the people that he rules so that “his undertakings comply with his age.”
Like Machiavelli, Han Feizi suggests private virtues may not be public virtues. Han Feizi notes that people fear “stern physical punishments,” and hate “heavy fines,” but a sage-like ruler uses them to prevent “wickedness,” as well as “violence and chaos,” proving that “benevolence, righteousness, kindness and loving care are not sufficient for use, whereas stern punishments and heavy fines can bring order to the state.” Reputations for “loving generosity” lead to ruin, as “loving concern consists in being unable to bear other people’s suffering, and generosity is the inclination to give things away. If you cannot bear suffering, then you will not punish trespassers; and if you are fond of giving things away, then you will dole out rewards without having seen any achievements.” Rulers are told that “appearance of fire is severe, and therefore few people are burnt by it; the appearance of water is soft, and many people drown. You must make your appearance stern, not to let people drown in your timidity.” The goal is not cruelty for its own sake, as Han Feizi advises a ruler that if “you are generous towards thieves and villains, then you harm honest people,” and to be “lax on punishments and fines and practise leniency and generosity, this in effect benefits the wicked and harms the good.” Rulers are advised to ignore the “proposals of learned men,” to make punishments for crimes light, as that would reduce the deterrent effect of punishment.
Rulers are encouraged to use the carrot as well, to “establish benefits to encourage people.” But contrary to the Confucian virtue of helping the needy, Han Feizi, worries that “giving succor to the poor and the troubled,” though “call[ed] benevolence and righteousness,” would permit those “without achievements” to be rewarded. Han Feizi makes punishment and reward the centerpiece of its statecraft because of its view, akin to Bentham’s, that pleasure and pain are the “two sovereign masters.” Han Feizi calls striving for “security and gain,” and avoiding “danger and harm,” our “basic human instinct.” People are described as controlled by “two handles,” which are “punishment and munificence,” since people are “afraid of punishments and fines, and covet praises and rewards.”
As Machiavelli advised princes to be feared if they cannot be both loved and feared, Han Feizi similarly advises the sage-like ruler not to “depend on others’ caring for him out of love,” as “anyone who depends on others’ caring for him out of love will be in danger.” Han Feizi explains that a wayward son who cannot be reformed by “his parents, the proper conduct of his neighbours, the intelligence of his teachers and seniors,” nevertheless would be reformed by a “local bailiff, wielding weapons from the state arsenal,” because “the people are arrogant towards love but obedient to awe-inspiring majesty.” In line with Machiavelli’s advice for a ruler to avoid becoming resented, Han Feizi warns that if “crime arises from A but the calamity hits B, hidden resentment will be formed,” and being “hard on an innocent person is what causes resentment among the people, and when the people are resentful, the state will be in danger.”
The severity Han Feizi prescribes aside, its analysis of human self-interest precedes Adam Smith’s conclusion of how self-interest can lead to beneficial exchanges in the market.
Han Feizi’s elaboration on the deterrent effect of punishment looks like an ancient Chinese version of a rational economic actor model of crime proposed by Gary Becker. Han Feizi recognized that deterrence was a function of severity, suggesting that “if one punishes heavily the light crimes, then light crimes will not arise and heavy crimes will never come. This is called removing punishments through punishments,” or “to eradicate punishments by punishments.” Han Feizi explained that the deterrent effect would depend on the probability of detection. People will keep committing misdeeds if “it is not sure whether the perpetrators will be caught,” “even if you publicly execute and dismember them,” but if harsh punishment was inevitable, then people would not commit crimes, “even if they could possess the whole world” by doing so.
The severity Han Feizi prescribes aside, its analysis of human self-interest precedes Adam Smith’s conclusion of how self-interest can lead to beneficial exchanges in the market. Smith famously remarked that “it is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love.” Han Feizi observes that when a landowner feeds his workers well, it “is not because the landowner is particularly fond of these tenants, but he says to himself: ‘In this way, they will plough even deeper furrows and when hoeing they will weed out even the small weeds.’ When the tenants use all their strength and weed and plough vigorously, they use all their skills and keep the ridges between the plots neat, it is not because they are fond of their master, but they say to themselves: ‘In this way, our broth will have excellent flavor, and our payment in money and cloth will be easy to get.’” Moreover, he adds, their “minds are attuned to … being useful, because each acts in his own best interest.” Han Feizi takes the principle even further, arguing that “when a cartwright makes carts, he hopes that people will become rich and noble; when the carpenter makes coffins, he hopes that people will have untimely deaths. This is not because the cartwright is kind-hearted and the carpenter a villain; it is just that, if people do not achieve noble status, elaborate carriages will not be sold, and if people do not die, coffins will not be bought.”
In contrast to Confucianism’s hope that with proper education and role models, society can be made virtuous, Han Feizi, foreshadowing modern Western authors, abandons attempts to instill moral virtues in the people, opting instead to take their self-interested nature as a given and design institutions around it. Rulers are encouraged to “adopt what works for the many and reject what works for the few, therefore he strives not for virtue but for law.” Han Feizi explains that “laws are established, not to prepare for the likes” of the virtuous but to enable a “ruler to stop the likes” of bad men. Subversively, Han Feizi even applies the principles of the lowest common denominator to rulers. Even “a mediocre ruler,” as long as he “keeps to law and the techniques of rule,” much like a “fumbling carpenter” who “keeps to the compass and the T-square,” “would not go wrong even one time in ten thousand.” Besides, Han Feizi argues, to hold out for an exceptional ruler would be foolish. Those by definition “emerge once in a thousand generations,” whereas embracing the law would permit “mediocrities” to assert orderly rule. Han Feizi applies the same reliance on law instead of virtue when it comes to administration, noting that “today, there are no more than ten honest and trustworthy gentlemen, but there are hundreds of offices within your boundaries,” so if a ruler insists “on exclusively appointing honest and trustworthy gentlemen, then there will be not enough people for the official positions.” Instead, Han Feizi states the proper strategy “of the clear-sighted ruler is to make uniform the law and not to seek out the intelligent; it is to be firm in techniques of rule and not esteem trustworthiness.”
Turn of the century Chinese thinkers, such as Liang Qichao, admired Legalism as proto-rule of law. Han Feizi argued that laws should be “compiled and written down on charts and documents, deposited in the repositories of the offices and promulgated to the hundred clans.” Han Feizi requires rulers to apply the law evenly, to punish even their favorites, so that the people understand that “if the ruler still applies the law” to the favorites of a ruler, “all the much more he will apply it” to the people. A ruler should not “repeatedly change the laws,” for if a ruler “frequently change[s] the laws, the people will find this hard to bear,” and the “state is likely to be ruined.”
Believing that attempts to develop virtue in leaders and the led are naïve, designing institutions based on the assumption that most people are self-interested, and the importance of the rule of law are all building blocks of modernity (for better or for worse). While these observations might seem trite today, we should be surprised that they were being discussed thousands of years ago in China. Han Fei’s contemporaries certainly were. Perhaps this explains why most political philosophers of this era died of natural causes, but not the Legalists, who often died violent deaths. A victim of court politics, Han Fei himself was forced to commit suicide. It might be of some comfort to Han Fei that his ideas have not died with him, and have instead, through the work of translators such as Harbsmeier, been introduced to a whole different world that Han Fei may not have imagined but, if given a chance to inspect, would recognize as familiar.