Reviews
 The Nonhistory of Legalism

Léon Vandermeersch. La Formation du Légisme. EFEO 1965

The first part of the following was posted to WSW on 25 Dec 2007, and the second part to CGC on the same date, a few minutes later.

Leon Vandermeersch

You know how it is in the waning of the year, the season of good will: you sit around in a soft light reading Vandermeersch on Légisme. In the back of his book, on p295, Vandermeersch lists what he regards as primary sources (Ecrits présumés de l'époque préimpériale). As a check on where the Sinological conscience was in 1965, I will here run through that list. Meanwhile, give Vandermeersch credit: he is not one of these tone-deaf types whose first act with a transcribed Chinese syllable is to eliminate its tonemarks. Vandermeersch has tonemarks. They sometimes show him to have had peculiar ideas about the pronunciation of certain words, but hey, that is how we learn. If you never expose your ignorance, you will never acquire wisdom. The idea is to acquire wisdom. Your dignity is relatively of no account. Go, Léon.

Turning now to the history of law, we have, as presumptively pre-Imperial:

The Vandermeersch List

In addition to these texts, Vandermeersch also gives entire credence to the work and persona of Li Kv (or Li Kwei), a supposed minister and reformer of Ngwei, whose writings are not presently extant. Both the writings and the existence of Li Kv had been shown by Pokora in 1959, six years before the publication of Vandermeersch's book, to be entirely mythical.

So, of the above listed 24 extant texts, only about 15 (two-thirds) are even predominantly pre-Imperial, and several of those are are treacherous if read as they conventionally are, that is, in terms of the time they purport to describe rather than the time in which they were written. (A work can be pre-imperial and still be phony; this is one thing that Karlgren imperfectly understood). Legalism is an important subject; it is arguably the most important subject in all of early Chinese history. But its treatment has been seriously compromised by indulging romantic ideas about the authenticity of manifestly precarious texts.

Two-thirds right. It's not especially encouraging.

A F P Hulsewé

And it has also been damaging. 15 years after Vandermeersch, in the lead article in the publication Leyden Studies in Sinology (Brill 1981), a solemn aegis if ever there was one, A F P Hulsewé had this to say about the history of law in China:

In his masterly study on the formation of Legalist ideas Professor Vandermeersch rightly stresses that there existed an ancient tradition of codification in many of the states that formed "la Chine antique;" the earliest date he mentions is the 7th century BC. There are references to early law codes in the Tso Chuan as well as in other texts; the Chou li, for instance, refers to a code which covered 2500 crimes. The oldest text which mentions penal prescriptions is probably the chapter "The punishments of Lü," Lü hsing in the Shu ching, the Book of Documents; to this chapter modern scholars attribute a surprisingly early date, namely between the 8th and the 10th century BC. This chapter not only mentions 3000 punishable crimes, but it also refers to written texts that should be consulted. All these informations necessarily lead to the conclusion that it appears that the Chinese states possessed written penal laws at least since the 8th century BC and perhaps earlier; what the thinkers of the School of Law did several centuries later was to propagate the strict application of these laws.

All this is fiction, and not even pure fiction: it is fiction with a motive. The motive is to establish a spurious history, an orthodox pedigree, for what was in fact a new invention: codified law. That new invention was made as part of a long restructuring of the Chinese state, a process whose first beginnings were somewhere around 0500, and whose first triumph, the first long-range battle between modern style infantry armies - armies whose enormous daily cost could only be met by a structurally and fiscally reformed state - occurred in 0343. The rise of law was required by that political restructuring, and the rise of law is not intelligible except in the context of that political restructuring. And, consistently with this general observation, it is to the period between 0500 and 0300, and chiefly in the latter two-thirds of that period, that our only sound text and archaeological evidence for law codes, and for regularized legal procedures, consistently points.

It is somewhat depressing to realize that even now, another 27 years or one human generation later, an empirical survey of opinions about the sources for Chinese law would probably show the same Vandermeersch/Hulsewé mix of sound and treacherous material, and a similar fondness for the material at the treacherous end of that range. As William Dean Howells once said, in a different context, where are those who are interested in real life?

II

To the above, someone might reply: So what would be a better text base, and how should it be read? The answer to the second question is, Chronologically. The answers to the first question, as it seems to me at this moment, are the following, listed in chronological order:

Early

04c

03c

Unless I am out of my count, the above list contains 24 texts (including inscriptional and manuscript texts), some of which admittedly appear at more than one place on the list. It may be taken as a suggested substitute for Vandermeersch's less critical list of 24. Together, and attributing their content to the period when they were written and not to the time they purport to describe, these texts give a very different picture of law, and for that matter of interstate relations, than can be had from the Vandermeersch list, and especially from the conventional way of reading the works on that list.

Chang had a go at the legal history of the Shang Dynasty, and Skosey took on the same task for Jou. Neither will pass muster. Those searching for the Spring and Autumn plus Warring States segment of legal history might be tempted to take up Vandermeersch. Just how perilous that natural thought would be, I hope to have briefly suggested above.

Three strikes and out. Legal history has yet to get itself out of the muck and into the air.

My final thought, not just for early China but in general, is that law is not a thing with an essence, whose history tends to unfold the same way in all cultures and periods. Law, as it seems to me, is best seen as one among many tools of the state. It is shaped by how those states or their respective cultures decide to accomplish certain results. What one culture does with law, another culture may achieve in another way. None of this is knowable a priori. All of it must be determined by inspection, by getting down on the ground with the evidence. The right evidence.

Respectfully suggested,

E Bruce Brooks
Warring States Project
University of Massachusetts at Amherst

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21 Oct 2012 / Contact The Project