Misnomer of the legalist Shang Yang, and how to fix the mess in China's legal system

Shang Yang (商鞅) was widely regarded at the representative figure in the school of "legalism" (法家)in 300BC. Chinese historian attributed the sucess of Shang and the Qin dynasty for its implementation of a 'legal system', which eventually resulted in Qin Shi Huang unifying China in 221BC.

update: thanks to Sam Crane for pointing this out, I should make it clear that Shang Yang is not the typical Legalist as seen by Chinese historians. And that I believe they have missed the most important aspect of Shang's thinking. I believe it is Shang Yang's spirit (not the "Legalist" school) who could help China fix the legal system. See comment filed below.

IMHO this neglected an extremely important aspect of the laws introduced by Shang (and the spirits), that Shang was first of all, a market economists. Just examine a few of the most important pieces of his laws
  • Reward and punishment based strictly on written laws (信赏必罚) - setting the market rules and adhering to them
  • Clarity and implementability of the laws (even applied to military): e.g. elimination of one enemy in war (need to show the head/ear as proof) would be rewarded by promotion of 1 level, land of 1 hactare, and house of 9 acres (能得甲首一者,赏爵一级,益田一顷,益宅九亩)
  • Encourage agriculture production by raising price (食贵则田者利,田者利则事者众-商君书·外内) - he was among the first to realize the relationship between price elasticity and demand/supply relationship
  • Reduce tax to encourage production (相对降低农业租税,对农业是“征不烦,民不劳”-商君书·垦令;“不农之征必多,市利之租必重”-商君书·外内)- this is actually another demonstration of his deep understanding in pricing

These are just some of the examples. We can find a lot more of the incentive (punishment) system in his book of laws, and for each rule he drafted he had a clear objective he wanted to achieve. Shang Yang was running the Qin Kingdom like a modern business, or a Singapore Inc.

Deng Xiaoping realized this, and China was able to push market economy even further than the capitalistic USA. e.g. the commercialization of its space program that puts NASA to shame. However, Deng had a much tougher job than Shang, so his reform had focused mainly in money related matters.

Why am I talking about this? Because I just read this NYT report on China's legal system. The suffering of the innocent peasants will make any reader cry and at the same time outraged.

  • A peasant was sentenced to death for rape and murder after uninterrupted torture by police officers. After the real murderer turned himself up in a neighboring town and admited to 18 counts of rape. The police in the tow towns conspired to reduce the crime count to 17 so that the poor peasant was kept on death roll, to save the embarassment of the police officers. Even after all this was exposed, the police officer involved still got promoted!

China already has a pretty complete set of laws. The problem is not in the laws, lawyers or judges (well, incompetent judges, yes). It is the implementation that is faulted. It is the lack of an effective punishment (and incentive) system for these people. To fix it, Shang's market principle could be applied. Any violation of law-enforcing members (from police officers to the judges), large of small, needs to be documented and there should be consequences to the mistakes. Without accountability there is no system.

One of the reasons Chinese are reluctant to punish the bureacrats is the general tolerance of mistake for the learned and authority, perhaps thinking these people are rare treasures(!). This can be traced to the Confucius teaching of 'the non-punishability of the authority' (刑不上大夫-礼记), and of course conveniently defended by those in power, especially those who do not deserve to be in power. This MUST be changed.

If China can implement the incentive system it had so successful preached to the its Aeronautic Agency also to its officer appraisal system (including that of the judge and law-enforcement departments), the legal system could be fixed. Of course, one of the well tested mechanism in the West is to let the press and opposition party to check those in power. China already has the internet as an alternative to the official (censored) media. In a couple years the townships are also going to welcome their elected majors. But these won't be enough. Maybe it is time CCP create a 'balancing power' within itself? - if it is so afraid of competition. Or tell me any alternative that could make this work?

p.s. Confucism and Dong Zhongshu had basically killed China's creativity 2000 years agos. If the Hundred_Schools_of_Thought (諸子百家) was allowed to thrive, China could have reached Renaissance well before the West did. The academic progess in the 400 years from 600BC to 200BC surpassed the total of the 2000 years that followed - to be elaborated in a future post, stay tuned.


Sun Bin said...

Follow up on Sam's comment: (see trackback)

Hi Sam,

Thanks for the discussions and the nice introduction.

I probably didn't write it with good clarity, my apologies :) So this was what I tried to say. I did not try to pretend Legalists as market believers. I was actually trying to single out Shang Yang from the rest of the 'legalists', and tried to argue that the later legalists probably have mis-understood Shang's spirit and believes. in other words, calling Shang a legalist is a misnomer.

Yes, as indicated in your link, Monopoly of Salt and Iron was a Legalist concept. But it was not part of Shang's ideas. It was first introduced by Han Wu Di around 100BC (200 years after Shang), as proposed by a later legalist Suan Hong Yang, Shang Yang has no idea of that. he actually only tried to impose tax on the salt trading as a revenue source for the state. see wiki on salt, han wu di

I am not an expert of Shang Yang, so he might also have some other anti-market ideas. But I think its was his deep insight into economic principles (and human nature) that made his reform successful.

Yes, I agree with your second point. the tragedy of China is that Li-ji 礼记 (which is not wirtten by confucius himself) was more "conveniently" used by the interested parties than Mencius. And Confuciusm' emphasis on authority was not helping the Mencius school regarding this split issue.

Sun Bin said...

Sun Bin,

I tried to cross post my comment on your site but Blogger would not let me in (for some reason my Firefox browser would not read the Chinese characters on your comments page - funny, because it reads Chinese characters on other pages...). In any event here is my comment.

Sun Bin,
I like your work to differentiate the particular ideas of Shang Yang from a more abstract category of "Legalist". You certainly know Shang Yang better than I, and I do not doubt that there may be elements of market-oriented, or proto-market, thinking in his work. It was just the category of "Legalism" that made me question things. And my understanding of Legalism is drawn mostly from Han Fei Tzu. I look forward to learning more about Shang Yang from you.
And, regarding, market-like thinking in ancient Chinese philosophy, Mencius has a quite sophiticated notion of the division of labor that I have been meaning to blog about for some time....


Sam Crane