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Asian Philosophy, 2013

Vol. 23, No. 1, 4361, http://dx.doi.org/10.1080/09552367.2013.749641

Constraining the Ruler: On Escaping


Han Feis Criticism of Confucian
Virtue Politics
Eirik Lang Harris
One of Han Feis most trenchant criticisms against the early Confucian political
tradition is that, insofar as its decision-making process revolves around the ruler, rather
than a codified set of laws, this process is the arbitrary rule of a single individual. Han
Fei argues that there will be disastrous results due to ad hoc decision-making,
relationship-based decision-making, and decision-making based on prior moral
commitments. I lay out Han Feis arguments while demonstrating how Xunzi can
successfully counter them. In doing so, I argue that Xunzi lays out a political theory
restricting the actions of the ruler through both the use of ritual and law, which allows
him to develop a theory that legitimizes government while at the same time constraining
itself. Xunzis political theory makes important strides in its attempt to recognize the
importance of the ruler as a moral exemplar while also restricting his control in the
political process.

In early (pre-Qin, before 221 BCE) Chinese political theory, we see a wide array of
debates and disagreements, both between various schools of thought and among
those who traditionally have been grouped under the same label. One of these
(c. 280 BCE233 BCE) and Confucian
disagreements arose between Han Fei
, Mengzi
, and Xunzi
.1 While Han Fei
thinkers such as Kongzi
provides quite a varied array of attacks against the Confucians, one of his most
trenchant criticisms against the early Confucian political tradition is that, insofar as
its decision-making process revolves around the ruler, rather than a codified set of
laws, the process is, in reality, the arbitrary rule of a single individual. Furthermore,
insofar as morality plays a central role in the rulers decision making, the decisions
made will often be inimical to a strong and stable state.
Indeed, Han Fei argues that there will be disastrous results due to ad hoc decisionmaking, relationship-based decision-making, and decision-making based on prior
Correspondence to: Eirik Lang Harris, Department of Public and Social Administration, City University of
Hong Kong, 83 Tat Chee Avenue, Kowloon, Hong Kong. Email: eiriklangharris@gmail.com
2013 Taylor & Francis

44 E. L. Harris

moral commitments. This paper, then, defends Xunzis use of morality in the
political realm and his resistance to relying solely on a codified set of rules and
regulations. In doing this, I proceed in the following way. First, I demonstrate where
Han Fei and Xunzi part company, arguing that these thinkers both have naturalistic
visions of social order that play out in different ways. Next, I argue that many of Han
Feis attacks on the Confucians actually miss their mark, at least when it comes to
Xunzi. That is to say, I argue that in many cases Han Feis arguments would only
work against a Confucian straw man, and not against Xunzis actual arguments. I also
argue that while certain of Han Feis arguments might very well work against earlier
Confucians like Kongzi and Mengzi, Xunzi has already built into his system many of
the safeguards necessary to meet Han Feis criticisms. In many cases, Xunzi sees the
problems with the arguments of his predecessors just as clearly as Han Fei does, if not
more so. Finally, I demonstrate how Xunzi could effectively criticize Han Fei in
return.

Ordering the WorldWhere Does Disagreement Arise?


There are certainly differences between Han Feis and Xunzis conceptions of order.
However, there is a naturalistic core of agreement that should not be dismissed.
Xunzis goal is the development of the sort of order that will best allow for the
survival and the flourishing of both individuals and their society. For him, the sort of
community that best allows for humans to survive in an indifferent world is the same
sort of community that will best ensure its own survival. That is to say, the wellordered state is one that is itself long lasting and one that allows its members to
flourish.2
For Xunzi, the well-ordered state arises out of a naturalistic moral order. The true
king is defended as being superior because only he is able to establish a solid
foundation for his rule, based upon rituals ( li) and proper social norms ( yi).
These are important because they are the devices that allow for order within the state.
While they may be valuable for their own sake, they are also instrumentally valuable
because they are developed as tools to ensure that a community follows those sorts of
tactics that will, given our natures and the external world, ensure a harmonious
society.
Xunzi does not tell us what would be more importantmorality or order within
the stateif they could not be simultaneously achieved. However, this is because he
sees both of these as arising together. We can see this when Xunzi says:
[1] The gentleman orders3 what is orderly. He does not order what is chaotic. What
does this mean? I say: Ritual and proper social norms are called orderly. Whatever
is not ritual and proper social norms is called chaotic. Thus, the gentleman is one
who orders [the practice] of ritual and proper social norms. He does not order
what is not ritual and proper social norms. That being so, if the state is chaotic, will
[the gentleman] not order it? I say: Bringing order to a chaotic state does not mean
employing the chaos to order it. One eliminates the chaos and replaces it with
order. Bringing cultivation to a corrupt person does not mean employing his

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corruption in order to cultivate him. One eliminates the corruption and replaces it
with cultivation. As such, the gentleman eliminates the chaos; he does not order the
chaos. He eliminates corruption; he does not cultivate corruption. The proper
employment of the term to order is as when one says that the gentleman does
what is orderly and does not do what is chaotic, does what is cultivated and does
not do what is corrupt. (Xunzi 2/10/1216)4

This passage makes it very clear that for Xunzi, the term order ( zhi) refers to a
moral order based upon ritual and proper social norms, and when he advocates the
implementation of order, it is this moral order. It is impossible, on Xunzis account,
to create order by employing non-moral tactics, just as it is impossible to cultivate an
individual by employing the immoral traits of that individual. First, it is necessary to
remove the immoral aspects of the state, only then is it possible to order it.
David Wong (2006) also notes the fact that morality is deeply tied in with political
theory in Xunzis writings, arguing that
morality functions to promote beneficial social cooperation, not simply through
requiring behavior that is cooperative and considerate of the interests of others but
also through refining and giving expression to feelings and that make people
promising partners in social cooperation. (p. 39)

Furthermore, Wong argues,


Morality plays a role in producing a more coherent system of desires and feelings,
strengthening the feelings of other-concern by affording them expression in
respectful actions that are conducive to social cooperation. Morality strengthens,
moreover, the compatibility between interests in self and interests in others by
supporting systems of social cooperation that reward cooperators and punish
violators of the norms. (2006, p. 40)

Given the role that morality plays in social organization, it simply cannot be pulled
apart from this social organization. To say, as Han Fei seems to, that morality is
inimical to social organization is simply to misunderstand the relationship between
the two. For Xunzi what we call morality is that which will lead to successful social
organization.5 Furthermore, for Xunzi, the Way is the way of a lord, and thus
inherently political and not simply individual (See Xunzi 12/59/1112).
Han Fei as well is interested in creating an effective social order. Furthermore, he
sees the law as an essential tool to creating this social order. And, importantly, this
law must accord with both the natural world and human nature if it is to be effective
in creating order.6 So, at their core, there are stark similarities between Xunzis
political philosophy and that of Han Fei. For both of these thinkers, there is a
naturalism at the center. Furthermore, they have roughly similar conceptions of the
natural world and human nature. Where they part company is on the question of
whether anything can be done with human beings, given the natures that they
possess. Han Fei believes that we are stuck with the natures that we have, while Xunzi
believes that moral cultivation, which results in important changes in our desires, is
possible.
There are certainly many questions surrounding both the possibility and
plausibility of moral cultivation, and elsewhere I have attempted to demonstrate

46 E. L. Harris

the plausibility of Xunzis account.7 However, Han Fei questions the desirability of
utilizing this cultivation in the political realm even if it is plausible. In particular, he is
worried about three things in the political realm: (1) ad hoc decision-making,
(2) making decisions based upon personal relationships, and (3) making decisions
based on moral commitments such as benevolence ( ren). The question, then, is
whether the Confucians in general and Xunzi in particular are susceptible to these
worries.

Ad Hoc Decision-Making
Han Fei is concerned with building a legal and bureaucratic system that will allow for
the effective governing of the state. He argues that a case-by-case basis for decisionmaking is insufficient and an overarching system must be established:
[2] If one abandons law and techniques and [attempts to] order the state based on
ones own ideas, in this way even Yao could not order a single state. If one discards
the compass and carpenters square and measures based on ones own rash ideas,
even Xi Zhong8 could not complete a single wheel. If one gets rid of the chi and cun
measurements and tries to determine different lengths, then even Wang Er9 could
not find the middle. If a mediocre ruler abides by laws and techniques, or if a
clumsy carpenter abides by the compass and square and the chi and cun
measurements, then in ten thousand tries, he never will go wrong. If the lord can
discard that which the talented and clever are incapable of and abides by what the
mediocre and clumsy cannot get wrong in ten thousand tries, then the peoples
power will be used to the utmost, and [the rulers] achievements and fame will be
established. (Han Feizi 27/58/2325)

The system Han Fei envisions is one that anyone can employ, just as easily as
mediocre carpenters can draw circles by employing a compass. As such, Han Fei
believes, the ruler must implement law if the state is to achieve order.
Certainly this is a challenge to many of the rulers of the Warring States period.
However, Han Fei is not the only one raising this challenge. Xunzi himself is worried
about rash or unstable bases for decision-making, and it is these worries that lead
him to advocate basing decisions on ritual and proper social norms rather than on
the rulers own desires. Indeed, as he closes his chapter on the true king and the
hegemon, Xunzi directly addresses the relationship between the bases of decisionmaking and order within the state:
[3] What injures the state? I say: To raise a petty man to a position above the
common people and give him authority; to employ inappropriately ones own
position to take from the common people and to do so skillfullythese are great
calamities that injure the state. If there is a ruler of a large state who is fond of
seeing petty profits, this harms his state. If his attitude toward sounds and sights,
terraces and pavilions, and parks and gardens is that the more he is gets, the more
he desires new ones, this harms his state. If he is not fond of cultivating and setting
straight the means by which he has these things, but always hungrily desires what
others have, this harms his state . . .

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If there is a ruler of a large state who does not exalt fundamental good conduct and
does not respect the old models (
fa), but rather is fond of deception and
schemingif he is like this, then the assembled ministers of his court will also
follow along in this fashion and become accustomed to not exalting ritual and
proper social norms, and will rather be fond of subversion and rebellion . . .
A ru in acting is not like thishe is certain to completely implement proper
distinctions. In his court, he is certain to exalt ritual and proper social norms, and
he will be careful in distinguishing between the noble and the base. If he is like this,
then among the bureaucrats and grand ministers, none will fail to respect proper
regulation or be willing to die to uphold standards. The hundred officials will then
set in order their standards and measures and their official posts seriously. If they
are like this, then among the hundred functionaries, none will fail to fear the law
( fa) or to follow what is straight . . .
When the bureaucrats and grand ministers work to maintain proper regulation and
are willing to die to uphold standards, then the states soldiers will be vigorous
[when fighting for it]. When the hundred functionaries fear the law and follow
what is straight, only then will the state never be chaotic . . .
This is having effective government and fine customs. If one employs it for defense,
then one will be firm. If one employs it to attack, then one will be strong. If one
remains at rest, then one will have great fame, and if one is engaged in action, one
will have great accomplishments. This is what the ru call completely implementing
proper distinctions. (Xunzi 11/56/724)

This passage is significant for several reasons. First of all, it demonstrates that
Xunzi realizes, just as Han Fei does, that allowing the ruler to act based solely on his
desires is going to be detrimental to order within the state. Furthermore, Xunzi
makes it clear that he does wish the ruler to rule based upon a model ( fa), and for
those within the state to be governed by rules and regulations. The source of these
rules and regulations is to be found in rituals and proper social norms. As such,
Xunzis ideal ruler cannot be accused of ad hoc decision-making of the sort that Han
Fei abhors.
However, this does not let Xunzi completely off the hook. If it is correct that Xunzi
advocates a form of particularism in his moral and political reasoning, that he
believes that what is morally and politically right is, in an important sense,
uncodifiable, then ritual and proper social norms are insufficient as bases for rules
and regulations to govern the state.10 It may very well be the case that rules and
regulations derived from rituals and proper social norms are, in general, sufficient to
govern the state, but they will not always be. Indeed, this is the basis for Xunzis
argument that only the true king will be able to ensure order within the state over
long periods of time.
If this is true, however, then order within the state cannot be reduced to simple
rule-following. Simply following particular rules without regard to context is good
neither for the state nor for its members. This is a standard Confucian refrain.
Kongzi, for example gives us the story of Upright Gong:
[4] The Duke of She said to Kongzi, Among my people there is one called
Upright Gong. His father stole a sheep and he testified [against his father].

48 E. L. Harris

Kongzi replied: Among my people our conception of upright is different than


this. Fathers cover up for their sons and sons cover up for their fathers. In this is
where uprightness is to be found. (Lunyu 13.8/35/2223)

The idea seems to be that the relationship between father and son is more
important than the theft of a sheep. We can conclude that there are laws against
the theft of sheep and that Upright Gongs father violated them. And, although the
way in which the ruler should respond is left undiscussed, Kongzi clearly feels that
anyone in Upright Gongs situation should protect his father rather than follow the
law.
A slightly different version of this story appears in the Han Feizi:
[5] In the state of Chu there was one called Upright Gong. His father stole a sheep
and [Upright Gong] reported this to an official. The magistrate said Kill him,
taking him to be upright with respect to his lord but crooked with respect to his
father. [The magistrate] had [Upright Gong] arrested and charged. From this case
it can be seen that one who is an upright subject to his lord can at the same time be
a reckless son to his father. (Han Feizi 49/147/2426)

And, as he makes clear a few lines further on, the execution of Upright Gong for
being unfilial leads to disorder within the state of Chu. By holding the virtue of filial
piety above the law, the district magistrate helps to ensure that in cases where it was
perceived that virtue required not reporting crimes, these crimes would go
unreported. As such, the order that the law is attempting to ensure cannot be
maintained.11
Mengzi as well argues that filial piety should take precedence over the laws
governing the state. In 7A35, he tells us how the sage king Shun, a paragon of filial
devotion would react to his father murdering someone:
[6] Tao Ying asked, If, when Shun was Son of Heaven and Gao Yao was the Chief
Minister of Justice, the Blind Man12 had murdered someone, then what would
have been done?
Mengzi replied, He would simply have been arrested!
[Tao Ying asked], If this happened, wouldnt Shun have forbidden it?
[Mengzi] replied, By what means could Shun have stopped it? [Gao Yao] had the
law which he had received.
[Tao Ying asked], Then what would Shun have done?
[Mengzi] replied, Shun viewed casting aside the world as nothing more than
casting aside a pair of worn out sandals. He would have secretly carried [his father]
on his back and stolen away to the edge of the sea to dwell, rejoicing to the end of
his days and happily forgetting the world. (Mengzi 13.35/71/718)

This passage makes it abundantly clear what the leader would have done. Filial piety,
for Mengzi, holds precedence over everything else, including attaining the entire
world.13 The right thing for the ruler to do in such cases is to help his father escape
punishment (though not by violating the rules governing his position).
Note too that the defense that the law in question was wrong or inappropriate is
not employed. Rather, Mengzi acknowledges that it is not the place of the ruler to
discard the law in this particular case. However, he is to find other means to save his
father and take him beyond the reach of the law.14 Shun recognizes the duty of his

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position, and thus abdicates the throne, for this is the only way he can honor both the
law and his father.15
It is actions such as these advocated by Kongzi and Mengzi that Han Fei thinks
will lead to instability and chaos within the state, and this concern is certainly
not implausible. Especially in a system where the monarch is hereditary and
there are no provisions for an orderly handover of power, the rulers fleeing
unannounced would certainly lead to chaos within the state. It is these sorts of
scenarios that lead Han Fei to be deeply skeptical about the role of morality within
the political sphere.
In general terms, Han Fei is worried about divided loyalties. Loyalty to the state is
one thing, while loyalty to others, be they friends or family members, or to moral
ideals, is another. As they are separate and independent from each other, they may
very well come into conflict, as we saw in passages [4][6].
Now, there are certainly defenses that could be mounted on behalf of both Kongzi
and Mengzi here. The crime laid out in passage [4] above is not terribly severe, and it
might be argued that part of what needs to go on is the balancing of loyalties to
individuals and to the state. Indeed, shielding ones father from less severe crimes may
very well produce precisely the kind of children the state needs in order to stay strong.16
It may well provide at least a chance to be loyal to both family and state, at least in the
vast majority of cases.17
Han Fei certainly would not wish to give ground in an argument such as this, and,
for him, not punishing light crimes severely will simply lead to the people becoming
more and more comfortable with committing severe crimes. However, it may well be
the case that we do not need to enter such a debate if our goal is simply to defend
Xunzi. Indeed, charges similar to those made on Han Feis behalf against Kongzi and
Mengzi perhaps cannot be laid against Xunzi. Unlike Kongzi, Xunzi does not provide
us with stories advocating filial piety over and above the law. Indeed, he makes it
clear in his chapter on how to be a good son that ritual and proper social norms are
more important than the orders of ones father, saying that following proper social
norms, not following ones father, is the greatest conduct (Xunzi 29/141/1920).
While this may initially seem to show that Xunzi is not an advocate of filial piety, and
that he may escape the problems of Kongzi and Mengzi on these grounds, this is not
the case. Rather, in what follows, we see Xunzi arguing that being filial does not mean
obeying ones father in all instances. Rather, it means upholding ritual and proper
social norms in ones interactions with ones father.
This may still be enough, though, because it gives us concrete standards from which
an individual can determine how to act with respect to his father. If the law as well as
what is filial both arise out of ritual and proper social norms, then Xunzi could argue
that actions demanded by law in general will not conflict with the demands of filial
piety, and in some cases the actions demanded may be the same. If this is the case, then
Xunzi may well be able to sidestep Han Feis worry.
The beginning of his chapter on the Way of the Lord, which describes
the relationship between the laws and the ruler, may help us get a better grasp on

50 E. L. Harris

Xunzis ideas:
[7] There are disordered rulers, not [inherently] disordered states. There are wellordered people, not [inherently] well-ordered methods (fa). The methods (fa) of
Archer Yi have not perished, but there is not an Archer Yi to hit the target in every
generation. The methods (fa) of [the sage king] Yu still exist, but there is not a Xia
Dynasty to rule in every generation. Thus, methods (fa) cannot stand on their own,
and categories cannot implement themselves. If one attains the right person, then
they will exist, while if one loses the right person, they will perish. Methods (fa) are
the sprouts of order, and the Gentleman is the wellspring of methods (fa).
Therefore, if there is a Gentleman, then even if the methods (fa) are sketchy, they
are sufficient to be comprehensive. If there is no Gentleman, than even if the
methods (fa) are complete, there will be a failure to apply them in the appropriate
order and an inability to respond to changes in affairs, and this is sufficient for
disorder. If one does not understand the meaning of the methods (fa), but still tries
to straighten out their arrangement, even if he has a broad view, he will certainly
cause chaos. (Xunzi 12/57/36)

In this passage, it is clear that fa is being used in a broader sense than simply laws.
However, laws, rules, and regulations can be seen as a subset of this broader sense of
fa. The problem that Xunzi sees with the laws is similar to the problem that
numerous Western thinkers including Kant, Wittgenstein, and Hart have noted,
namely that there cannot be a rule to tell us how to apply every rule. Rather, at some
point, someone must make a judgment, and this judgment cannot simply be a
following of another rule.18
However, there are two importantly different ways in which judgment may be
involved. It may be involved at the stage of interpreting the law or at the stage of
determining whether or not to adhere to a particular law. H. L. A. Hart gives us a
good example of the former case. Imagine a law that says that no vehicle may be
taken into the park. What exactly does this law mean? Motorcars, buses, and
motorcycles seem to clearly be prohibited. But what about toy cars, bicycles, or
ambulance and police vehicles? One must employ judgment to determine whether
these things are precluded from entering the park, and no set of rules can be
comprehensive enough to completely eliminate the necessity of judgment (Hart,
1994, pp. 128129).
It is an open question whether Han Fei himself understood how large a role
judgment must play even in a sufficiently detailed bureaucratic and legal system. At
times he seems to think that such a system will work with almost mechanical
precision, leading one to think that the role of judgment must be negligible in his
mind.19 However, there is no particular reason to think that he would not have
understood the open texture of the law, to use Harts terminology.
If Han Fei did understand this open texture of the law, then it might initially
appear that he would find little in the content of Xunzis claims in passage [7] to
disagree with, however much he might object to the terminology. Xunzi acknowledges in this passage that the laws may need to be changed, which, of course, is not
problematic from Han Feis standpoint. After all, Han Fei recognizes that the laws
may need to change over timeindeed he takes this to be almost a certainty.

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He strongly criticizes those who venerate the sage kings Yao and Shun and attempt to
follow their methods without realizing that as times change so too must the methods
of governing.
However, there is a difference between changing the laws because circumstances
overall have changed and not applying certain laws because one questions the
appropriateness of applying a particular law in a particular instance. The former is
something Han Fei would advocate while the latter is something he would abhor.
So, which of the two is Xunzi talking about? Xunzis discussion of being unable to
respond to changes in affairs without the Gentleman (Xunzis morally cultivated
individual) could be taken in either way. It could be that the Gentleman understands
when times and circumstances have changed sufficiently that old laws are no longer
serving their purpose and need to be modified. It could also be the case that the
Gentleman understands when a particular law will not serve its purpose in a
particular instance, even though the law is still effective in general.
There are several reasons to believe that Xunzi would not limit the Gentleman to
modifying outdated laws. First, as we see in passage [7], the Gentleman is the
wellspring of the law. It is the Gentleman rather than the law that is primary. Given
the primacy of the Gentleman, it would seem strange were he not able to rescind the
law temporarily if doing so is appropriate in certain circumstances. Furthermore,
Xunzi tells us in this passage that there is an appropriate order in which to apply the
law. If this is correct, then the application of the law must not be simply mechanical.
It must not consist solely in taking particular action X and asking whether there is a
law Y that it violates. Rather a deeper understanding is necessary in order to allow
one to determine not only which laws to apply but also whether to apply them given
the particular circumstances.
Recall also from passage [7] that a sketchy system of laws can be sufficient in the
hands of a Gentleman. If we take Xunzi to mean a simple or crude set of laws then
it becomes even more likely that they are the sort that simply should not be applied in
particular cases. They are merely guidelines to help frame the rulers thinking. Note
too from this that Xunzi must not think that continual updating and fine tuning to
be particularly necessary or sketchy laws would not be sufficient.
What underlies Xunzis difference from Han Fei in this instance is actually quite
important, and there are at least two aspects of interest. First, there is a difference
between what these two thinkers are willing to accept as consequences of their
actions. Second, there is a difference in their views on whether there is any codifiable
set of standards what will lead to order within the state.
When forced to choose between providing for the undeserving or allowing them,
along with those truly deserving of assistance, to die, Han Fei is perfectly willing to
take the latter route, arguing that the possible disorder that could arise from feeding
those not deserving of assistance is of far greater concern than life itself. As he says:
[8] There was a great famine in the state of Qin. The Marquis of Ying said: As for
the plants and roots of the Five Gardens, these vegetables, acorns, jujubes, and
chestnuts would be sufficient to allow the people to survive. I ask that we
distribute them.

52 E. L. Harris

King Zhao Xiang said: Our laws of the state of Qin ensure that people have
achievements and only then receive rewards, that they commit crimes and only
then are punished. Now, if we distribute the vegetables from the Five Gardens, this
will enable those who have achievements along with those who lack achievements
all to be rewarded. Now if we enable those who have achievements along with those
who lack achievements all to be rewarded, this is the way of disorder. Distributing
food from the Five Gardens and having disorder is not as good as throwing away
these jujubes and vegetables and having order.
Another source says: King Zhao Xiang replied, Ordering the distribution of
melons, vegetables, jujubes and chestnuts would be sufficient to allow the people to
survive, but this would cause those who have achievements and those without
achievements to struggle over getting these things. Now, keeping them alive but
having disorder is not as good as letting them die but having order. May you, grand
minister, give up this thought! (Han Feizi 35/108/29109/2)

Given this view, Han Fei can be seen as a state consequentialist of sorts. Xunzi, on
the other hand, explicitly argues that harming the good is worse than benefitting the
undeserving (Xunzi 14/67/2425). Xunzi, then, would accept any possible disorder
that might arise because his focus is on helping those who deserve his assistance. This
concern with the people may initially lead us to think that he is acting in a
consequentialist fashion. And, if this were the case, such a concern for the innocent
could be problematic, for, in not sacrificing the few to save the many, he might
actually fail. However, this concern with desert seems to indicate that he is not, at
root, a consequentialist of any stripe. He may take into account consequentialist
considerations, but they are not paramount all the time.20
To the extent, then, that it is not simply the system that is important but also
the elements within it, Xunzi offers a more appealing account. This is not to say,
however, that it is without potential pitfalls. While Xunzi explicitly excludes the
ruler making decisions based upon favoritism, in the hands of a less than virtuous
ruler it is easy to see how an ability to negate laws (or pardon offenders) can,
as Han Fei worries, lead to disorder. The question, then, is whether safeguards can be
put in place so that the sort of worries Han Fei has about ad hoc rule changes can be
satisfied.
There is another, related, advantage to Xunzis system in this regard. For both
Xunzi and Han Fei, justification of a community and a particular hierarchical
structure comes from the advantages that it bestows on the individuals within the
community. For Xunzi, a community is the arena that best affords protection to the
individual as well as the one that best allows her to most effectively develop herself.
And, as Xunzi tells us, Heaven, in creating people, did not do so for the sake of the
lord. Heaven, in establishing the lord, did so for the sake of the people (Xunzi 27/
132/29). It is the people, not the ruler (nor the state) that is of fundamental
importance for Xunzi.21 It is for this reason that Xunzi notes that a true king puts
benevolence first (Xunzi 27/126/27). For Han Fei as well, the justification of the ruler
initially hinges on his ability to help individuals lead better, less dangerous lives.
Both The Nester and The Kindler justified their rules because they were able to
alleviate serious dangers to individual survival.22

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However, as Han Fei develops his justification for political rule, it shifts to hinging
on solving the particular problems of the times. There is, though, another shift that
goes along with this, a perspectival shift. Rather than being concerned with the
particular problems of the times from the perspective of the individuals living in
those times, Han Fei is concerned with the particular problems of the times from the
point of view of the state itself. He is interested in those things that are impediments
to order within the state, rather than those things that are impediments to the wellbeing of the individuals within the state.23
Yet, in making this shift, Han Fei is undermining the very criteria he originally
used to justify the ruler in the first place. It might be possible to justify such a
perspectival shift if it were argued that ensuring order within the state is the most
effective means of providing for individual members within the state. However, this
is not a move Han Fei makes, and as we saw above, certain passages in his writings
indicate that he is willing to sacrifice individuals when their well-being potentially
conflicts with order within the state. As such, a system more in line with Xunzis has a
greater potential of achieving the goals that Han Fei originally set for the ruler.
The second difference between these two thinkers arises in that while Han Fei sees
the set of conditions that will lead to order within the state as codifiable, for Xunzi
they are uncodifiable. For Han Fei, the Way, and the pattern of the universe as it
relates to human affairs is such that a codifiable set of standards can be implemented
for any particular period of time, and this set of standards will result in an ordered
state. He recognizes that as human beings develop, populations and technologies
change, and our needs as individuals and communities vary, this set of standards will
change as well. However, it is possible to figure out what sort of rules will lead to an
effective state so long as we understand the overarching pattern of the universe and
relevant facts about human beings.24
For Xunzi, on the other hand, the Way, as Paul Goldin puts it, is ultimately
ineffable (Goldin, 1999, pp. 103104). That is to say, figuring out how to order the
state is not simply a process of figuring out what set of rules will allow human beings
to come together most effectively. Rather, Xunzi is committed to the idea that ethical
and political truths cannot be systematically and comprehensively spelled out. They
will only fully be understood by those who are cultivated.

Relationship-Based Decision-Making
A second concern that Han Fei has with the Confucians is that decision-making is
relationship-based. After all, both Kongzi in passage [4] and Mengzi in passage [6]
advocate actions based on the fact that one of the parties concerned is ones father.
For Han Fei, when one ignores the law because of the relationship one has with one
of the concerned parties, be it ones father, ones concubine, or ones favored
minister, the result will be the samedisorder within the state.
There is certainly something to Han Feis criticism. However, we can accept that he
is correct in this assessment and still question whether his shot hits home with regard

54 E. L. Harris

to Xunzi. After all, Xunzi makes it clear that the ruler should not take relationships
into account when determining who to appoint to particular positions in
government:
[9] As for those who make great use of [the state], they put proper social norms
first and profit after. As such, they do not care about whether ones relationship
with them is close or distant nor about whether ones status is noble or lowly but
only seek those who are truly capable. This is called making great use of the state.
As for those who make petty use of it, they put profit first and proper social norms
after. As such, they do not care about right and wrong nor crookedness or
uprightness, but employ only those they favor and those who ingratiate themselves
with them. This is called making petty use of the state. (Xunzi 11/51/1416)

According to Xunzi, a ruler who employs those he favors rather than those who are
qualified will endanger the survival of the state. Xunzi continues,
[10] Why are the rulers of men not more broad-minded? Let them not pay
attention to whether relationships are close or distant, and not be biased, but seek
only those who are truly capable. (Xunzi 11/53/2223)

Thus, it is clear that competence rather than relationship is the necessary requirement
and guiding standard for government positions. Recall as well that for Xunzi true
filial piety consists in following ritual and proper social norms rather than the
dictates of ones father. This indicates that Xunzi would also be against any form of
nepotism, leaving him unsusceptible to the claim that the Confucian emphasis on the
family leaves him with the problem of disorder arising from relationship-based
decision-making.25

Moral Commitments and Decision-Making


Han Fei takes a very dim view of employing moral commitments in the political
decision-making process. Doing so, he believes, will result in disastrous consequences. He illustrates the dangers of striving for Confucian virtues such as
benevolence and proper social norms by referring to a well-known story from the
26
Zuo Zhuan
about Duke Xiang of Song:
[11] Duke Xiang of Song was fighting the people of Chu on the Zhuogu River. The
people of Song had already formed ranks while the people of Chu had not yet
forded [the river]. The Commander of the Right, Gou Qiang hastened forward and
remonstrated: The people of Chu are numerous while the people of Song are few.
Please order the attack while the people of Chu are only halfway across the river
and have not yet formed ranks. They will certainly be defeated.
Duke Xiang replied, I have heard a Gentleman say, Do not wound someone more
than once, do not capture those whose hair is turning grey, do not push people into
danger, do not compel people into impossible situations, do not sound the attack
drums [when the enemy] has not yet formed ranks. Now, attacking Chu when they
have not yet forded [the river] is to harm proper social norms. I request that you wait
until the people of Chu have finished fording [the river] and formed their battle array
and only after that sound the attack drums to send the officers forward.

Asian Philosophy

55

The Commander of the Right said, My lord does not care about the people of Song
or whether their stomachs are cut open and their hearts scooped out. You are only
concerned with proper social norms and that is all.
The Duke said, If you do not return to your ranks, I shall implement the law [i.e.,
punish you].
The Commander of the Right returned to the ranks. Only after the people of Chu
had formed their ranks and composed their battle array did the duke thereupon
drum his troops forward. The people of Song suffered a great defeat and the duke
was injured in his thigh, dying three days later.
This is the disaster arising from a personal admiration for benevolence and proper
social norms. (Han Feizi 32/87/2025)

Here, Han Fei is referring to a historical personage who died of a battle wound in
638 BCE. The point of the story as recounted by Han Fei is clear: Duke Xiangs
concern for the moral qualities of benevolence and proper social norms not only led
to the deaths of many of his countrymen, but to his own as well, and was disastrous
for the state of Song. As such, it is dangerous to allow moral commitments to enter
into the decision-making process. Recall his exhortation that rulers who understand
the Way distance themselves from benevolence and proper social norms:
[12] Therefore the ruler who understands the Way distances himself from
benevolence and proper social norms, sets aside [his own] intelligence and ability
and makes the people submit to the law. Because of this [the rulers] fame will be
widespread and his name will be awe-inspiring. His people will be well ordered and
his state at peace. [This is a result of his] understanding the methods of employing
the people. (Han Feizi 44/132/1213)

Now, Han Fei does at times speak in a laudatory fashion about apparently moral
qualities such benevolence and proper social norms. However, he is appropriating
these previously moral terms and utilizing them in a distinctly nonmoral fashion.27
When he advocates yi,28 it is as a nonmoral sense of rightthe right course of action
for achieving ones goals.29 As such, the disagreement between Xunzi and Han Fei does
not turn out to be a disagreement over what is moral. However it is still open for us to
question whether Han Feis frequent attacks against moral qualities are attacks to
which Xunzi is susceptible. After all, as Han Fei demonstrates, simply using a term does
not mean that that term is being used in the same way as others have used the term.
Therefore, the mere fact that Xunzi advocates moral qualities such as benevolence and
proper social norms does not mean that he is susceptible to Han Feis attacks on these
moral qualities as they play out in stories such as that of Duke Xiang of Song.
The fact that some Gentleman told Duke Xiang that a certain action is immoral
does not mean that Xunzi need accept that this action is immoral. Indeed, there is
good reason to think that Xunzi would have just as much of a problem with Duke
Xiangs actions as Han Fei does.
Recall again that for Xunzi rituals and proper social norms are at least partially
justified because of the advantages they bestow on individuals. The community that
ritual and proper social norms allow human beings to form is the sort of community

56 E. L. Harris

that best allows human beings to survive and flourish in the long run. Therefore,
Xunzi would not hold up as a moral quality some standard that is actually inimical to
this survival and flourishing.
Indeed, insofar as Xunzi recognizes that there is no set of laws that is infallible at
creating order (and no set of rituals and proper social norms that are infallible when
used to form a community) so too must he realize that actions that in general are
dictated by virtue will not necessarily lead to the virtuous outcome in a particular
situation. Therefore, Xunzi could respond to Han Fei in two ways. First, we can imagine
him saying in certain instances, Dont tar me with the brush of these other Confucians
or Gentlemen. Look, rather, at what I actually say is the morally right course of
action. Just as Xunzis understanding of filial piety is more sophisticated than earlier
Confucian thinkers, his understanding of other virtues such as benevolence and proper
social norms have a similar degree of sophistication and demonstrate that he is fully
willing to distance himself from some of the claims of his Confucian predecessors.
Of course, such an understanding must be tempered by Xunzis discussion with Li
:30
Si
[13] Li Si questioned Xunzi, saying: The State of Qin has been victorious for four
generations. Its army is the strongest within the seas and its awesomeness controls
the feudal lords. It is not because of benevolence and proper social norms that it is
like this, but rather by means of utilizing opportunities and acting from an awareness
of circumstances and that is it.
Xunzi replied: It is not how you suppose it. What you call opportunities are not
true opportunities. The benevolence and proper social norms that I talk about are
great and true opportunities. This benevolence and proper social norms is the means
by which to set straight the government. If the government is set straight, then the
people will be close to their superiors, will delight in their lord and will think lightly
of dying for his sake. Therefore it is said that of military affairs, generals and marshals
are the least important affairs. The State of Qin has been victorious for four
generations, but it has been constantly apprehensive and fearful that all under heaven
will unite and crush it. The armies of recent times that I talk about do not have
fundamental principles or system. Therefore when the sage king Tangs expelled the
Tyrant Jie, Tang did not pursue Jie after Jie had reached Mingtiao.31 When the sage
King Wu executed the Tyrant Zhou, he did not defeat [Zhous armies] until the
morning of jiazi.32 These were both because of their previous cultivation, and these
are armies that refer to as those regulated by benevolence and proper social norms.
Now, you do not seek it at its source, but rather seek it at its ends. This is the reason
for the disorder of the current age. (Xunzi 15/72/17)

This passage indicates that Xunzi rejects thinking in more practical terms about
what is expedient. However, rejecting this mode of thought in no way forces him to
accept any particular ritual or social norm. Rather, he is equipped with the tools to
analyze these proper social norms, determine whether they are actually constitutive of
human and societal flourishing and proceed accordingly. As such, Xunzis conception
of what is morally right can be quite nuanced and lacks certain of the problems Han
Fei notes in earlier Confucian thinkers.
Second, the uncodifiability of morality means that there will be cases in which
actions that would normally demonstrate benevolence, proper social norms, or care

Asian Philosophy

57

for the people, among other moral qualities, do not actually serve these ends. It is
precisely for these reasons that we need a sagely ruler. It is important to have
someone who can exercise judgment, who can look at the situation and see whether
in that particular case a particular action will actually provide the desired result.
Furthermore, Xunzi could argue that his system will help ensure a better outcome
than Han Feis system could. Han Fei himself admits that a system of laws will not
always yield an optimal result (though this may not be his intent). Recall, for
example, the story of Marquis Zhao of Han, who punished the keeper of the caps for
placing a cloak over him when he was asleep. The cloak kept the Marquis warm, but
the task was one for the keeper of clothing, not the keeper of caps, and so both were
punished, the one for failing his task, the other for exceeding his duty (Han Feizi 7/
10/14). The purpose of this story is to demonstrate that Han Fei is extremely serious
about members of the bureaucratic system not overstepping their bounds. Doing so
is dangerous to the system as a whole, even though the result is to leave open the
danger of Marquis Zhao sleeping without his cloak.
We can, however, imagine a slightly different scenario. Perhaps the keeper of the
pass, whose job it is to collect taxes from merchants entering the state of Han
through a particular mountain pass comes upon information that the state of Han is
about to be invaded. However, his job responsibilities are spelled out in such a way
that it is never permissible for him to leave his post. After all, were he to do so,
merchants could enter without paying taxes. One might reasonably think that the
harm of a surprise invasion would be much greater than the harm that might arise
from the keeper of the pass abandoning his post to convey information of the
impending invasion to the ruler of Han, even though it is not part of his job
description. Han Fei, though, would be forced to say that the harm entailed in
abdicating the responsibility of the position of keeper of the pass, as well as the harm
entailed in doing the job of whoever is actually responsible for alerting the ruler of
invasions, is greater than the harm that the invasion could cause. This, though, is a
highly implausible case to make, especially when the harm of invasion could be so
great as to result in the complete destruction of the state of Han.33
Xunzi, on the other hand, understands that rules and regulations will not always
result in the optimal action. After all, they are simply guidelines established because
in general they do have the desired result. Judgment, though, is certainly necessary
for the hard cases. Xunzi provides a theoretical framework for understanding just
why the laws are insufficient on their own. Furthermore, he provides a plausible
account of moral cultivation. To the extent that moral cultivation is realized, those
charged with the implementation of laws, rules, and regulations will gain the sort of
judgment necessary to ensure that rules and regulations serve their purpose of
providing a community that will allow its members to not only survive but to thrive.
Further, Xunzi does not open up wide discretion to just anyone. Rather, one must
be a cultivated individual before one can break or bend the rules, and even claiming
such a status stands as a break to its implementation. Indeed, this is not so different
from the use of judicial discretion in Anglo-American law, where certain judges have
the right to interpret the law (and perhaps even to revoke legitimately enacted laws).

58 E. L. Harris

What would cause chaos, and what Xunzi certainly does not advocate, is if just
anyone could engage in this kind of judgment.34
In this spirit, it should also be noted that the idea of owing more to those with
whom we have special relationships is not a foreign concept. Our own legal system
recognizes quite a range of special legal powers in such instances. For example,
spouses can refuse to testify against each other. Han Feis system does not seem to
allow us to favor our kin (or others close to us) in any significant way, an
unappealing feature of his view, the problems of which still rings true today.35
While it is true that a state with a legalistic system of the sort Han Fei envisions may
well be better than a state in which decisions are made in an ad hoc fashion, or one in
which relationships play an inordinate role in decision making, or so-called moral
commitments hold disastrous sway, this does not mean that his system is superior to
that of Xunzi. First, Xunzis system is sophisticated enough to sidestep many of the
worries that Han Fei has. While it may be true that there are Confucians that may be
unable to answer Han Feis charges, it is clear that Xunzi has the ability not only to
demonstrate that Han Feis criticisms do not hit their mark, but that his own system is
more powerful and potentially more effective than that proposed by Han Fei.
Han Feis writings provide us with stark criticisms of certain versions of morally
informed or morally reliant political theory. However, a deeper analysis of the details
of Xunzis political theory and the sort of activity on the part of the ruler that is
consistent with it demonstrates that it is possible to avoid at least certain of Han Feis
worries while further developing a political theory heavily indebted to a conception
of virtue and what it means for individuals and communities to flourish. This of
course does not demonstrate that there are no possible criticisms of Xunzis political
theory, but it does show that he is not susceptible to claims that his theory
illegitimately relies upon ad-hoc decision-making, relationship based decisionmaking, or decision-making based upon prior moral commitments.
Acknowledgements
Sections of this paper were presented at the International Society for Comparative
Studies of Chinese and Western Philosophy panel at the Pacific APA Conference in
2011, at the Australasian Society for Asian and Comparative Philosophy Conference
in 2012, and at the City University of Hong Kong in 2012. I am grateful to the
organizers and participants for their questions and observations. I also wish to thank
Thai Dang, Margareta Hanes, and Henrique Schneider for their thoughtful
comments and corrections. Finally, I am very indebted to Eric L. Hutton and
Philip J. Ivanhoe for their extensive criticisms and careful reading of numerous drafts
of this paper.

Notes
[1]

As many have argued, there are problems with attempting to corral various early Chinese
thinkers into schools. However, I persist in using the term Confucian here for several

Asian Philosophy

[2]
[3]
[4]
[5]

[6]
[7]

[8]
[9]
[10]
[11]
[12]
[13]

[14]
[15]

[16]
[17]

[18]

59

reasons. First, Han Fei himself talks of the Ru , the term that has often in the West been
translated as Confucian. Second, while there are important differences among these three
thinkers, it is the general approach to political philosophy that these three share to differing
degrees that Han Fei wishes to criticize. For an analysis of the problems of school
identification, see Nylan and Csikszentmihalyi (2003), Sivin (1978), and Smith (2003).
For an extended defense of this claim, see Harris (forthcoming).
That is, puts in order.
All translations are my own.
Furthermore, it would be a mistake to ask what is more important for Xunzi, morality or
social organization. Conceptually they cannot be pried apart. It would not make sense to talk
of a morality that did not lead to the most effective social organization or of an effective
social organization that was not based upon morality.
For an extended defense of this claim, see Harris (2011).
The range of literature on the question of whether humans have stable character traits is quite
vast, and both the defenders and detractors of these views have spilled substantial ink over the
past decade or so. (Interestingly, many of the arguments marshaled by the detractors simply
mirror the views Han Fei himself eloquently laid out.) For my defense of Xunzi, see Harris
(2013).
Xi Zhong
was a lauded wheelwright of the Xia dynasty.
Wang Er
was a famous carpenter.
For an extended defense of understanding Xunzi in this way, see Hutton (2001).
The problem is that while Confucians see filial piety as a good in itself, Han Fei believes that
this filial devotion is inconsistent with desiring order in the state.
The Blind Man refers to Shuns father.
The importance of filial piety is underscored by understanding just how poor a father the
Blind Man was to Shun. For a description of how poorly Shun was treated by his father, see
Mengzi 5A2.
There is also the implication that Shun would be taking his father and placing him in a
situation where he cannot further harm others.
Of course, while, were Shun to have acted in this way, it may have allowed him to escape
charges of misuse of rule, it is unclear whether it would allow him to escape charges that he,
as a private citizen, was still guilty of what we would call aiding and abetting.
As P. J. Ivanhoe (2007) notes, the Western Skeptic Hecato holds a similar view: see p. 309, n29.
The case of Shuns father murdering someone, however, poses a deeper worry, for this crime
does seem to be fairly severe. Hecato, noted above, argued that it was better for the state to
have citizens who stand by their parents than simply to have money, and thus argued that a
son should defend his father if he plots to steal money from a treasury or temple. This
reasoning seems to be similar to the reasoning that Kongzi uses. However, it is unclear
whether these justifications based on strengthening the state and community could
withstand the defense of crimes such as murder.
Kant, for example, tells us, For a concept of the understanding, which contains the general
rule, must be supplemented by an act of judgment whereby the practitioner distinguishes
instances where the rule applies from those where it does not. And since rules cannot in turn
be provided on every occasion to direct the judgment in subsuming each instance under the
previous rule (for this would involve an infinite regress), theoreticians will be found who can
never in all their lives become practical, since they lack judgment, see Kant (1991, p. 61).
See Wittgenstein (1958, paras 66276, at 31e96e) for an argument that judgment cannot
amount to following a rule in ones own mind. H. L. A. Hart (1994) talks of the open
texture of the law in his discussion of why judgment is necessary for the application of the
law (see pp. 128136).
I thank Bryan W. Van Norden for his Han Feizi and Confucianism: Toward a Synthesis,
presented at the American Philosophical Association Eastern Division Meeting, December

60 E. L. Harris

[19]
[20]
[21]
[22]

[23]
[24]
[25]

[26]
[27]
[28]
[29]

[30]

[31]
[32]
[33]

[34]

2008, which helped clarify my thinking on this issue. See the revised version in Van Norden
(2013).
P. J. Ivanhoe brings out the mechanical nature of Han Feis ideal system, describing the ruler
as the phantom oiler of the vast state machinery (Ivanhoe, 2011, p. 41).
For a longer discussion of why I do not take Xunzi to be a consequentialist in either his
ethics or his politics, see Harris (forthcoming).
This contrasts quite starkly with Han Fei, for whom it is the institution of the state rather
than the people, or even particular rulers, that is of paramount importance.
The Nester and The Kindler were two of Chinas early mythical kings. The former taught the
people how to build houses in the trees to escape wild animals while the latter taught them
how to build fires.
In this respect, he shares some similarity with the Mohists. For more on this, see Harris
(2012).
Of course, Han Fei is potentially dodging an important issue here by not elucidating just
who is capable of making such judgments.
For a fuller discussion of nonfamilial aspects to Confucian political philosophy, see Chan
(2004). Note too that none of the passages above necessarily demonstrate a conflict of
interests. Shun would only experience a true conflict of interests if he were to save his father
while remaining king. This he did not do. He abdicated before spiriting his father away, and
thus acted as a private citizen, not as king.
The Zuozhuan was a well known commentary to the Chunqiu
(Spring and Autumn
Annals) and as such this story would have been known to Han Feis audience.
For more on this, see Harris (2011).
For the passages from Xunzi, I have been translating yi
as proper social norms.
This is a common meaning of the term. In the the Zhong Yong
(Doctrine of the Mean)
yi ( ) is related to yi ( ), doing what is proper or appropriate. See Zhong Yong 20.5. For
the same passage as part of the Liji
, see Liji 32.14/144/26.
Li Si is reputed to have been a student of Xunzi. However, he is far more famous for being
the prime minister of the state of Qin and the later Qin Dynasty between 246 and 208 BCE,
serving the First Emperor of China, Qin Shihuang
, and his son. He is also credited
in the Shiji
with having been responsible for the death of Han Fei. As the story goes, Li
Si convinced the king of Qin to imprison Han Fei and then convinced Han Fei to commit
suicide by drinking poison, under threat of a much more gruesome execution.
Mingtiao
was the ancestral hometown of the Tyrant Jie, and the place where he was
allowed to live, under guard, until his death.
Jiazi
is the first day of a 60-year cycle.
Certainly, the argument could be made that the job description of the keeper of the pass
could include secondary responsibilities such as serving as a sentry for the state. However,
the point to be made is that it is highly unlikely that job descriptions could be sufficiently
detailed to take in all possible (or even merely all plausible) circumstances. As such, it is not
unlikely that situations of the sort indicated here realistically could arise.
One might worry that even in Xunzis system, the keeper of the pass would be unlikely to
have the status of morally cultivated individual, especially if we are working with Xunzis
non-ideal theory. And, if he did not, then he has no right to neglect his duties and go to
warn the king. However, it may well be the case that there instances in which even relatively
uncultivated individuals can clearly see the benefits in a particular course of action. This is
brought out clearly in Mengzi 4A17. Here, Mengzi is asked whether, given the fact that there
was a ritual prohibition on men and women touching, one should use ones hand to save
ones sister-in-law when drowning. Mengzi very clearly states that in this case the ritual
prohibition should certainly be overridden by the particulars of the case, and one need not
think that a high degree of cultivation is necessary to understand this. The threat of

Asian Philosophy

[35]

61

punishment, of course, will still dangle above their heads until the ruler, or some other
morally cultivated official, recognizes the action as the correct one to take.
Han Fei is much like Mozi in this regard.

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