GRAND COUNCILLOR LI SSU
DAVID ARTHUR WALTERS
Although Chao Cheng of Ch’in, who became Shih Huang Ti, the First Sovereign Emperor of China, is the majestic subject of our ancient success story, we must not ignore his Grand Councillor Li Ssu, for Li Ssu was the prime minister who rationalized the power of the throne. Indeed, some say the Legalist Grand Councillor is the primary means by which the Taoist-leaning Emperor got everything done by doing nothing.
Li Ssu was a native of Ch’u. He managed to associate himself with King Cheng of Ch’in around 247 B.C., a year or two after the thirteen-year old boy-king took the throne that he would hold for twenty-seven years prior to becoming the First Sovereign Emperor of all China for another eleven years.
Li Ssu was from humble circumstances, yet he had a mind to get ahead in life and he believed there was scant future in serving the King of Ch’u. According to the Shih Chi (Historical Records) of Ssu-ma (145-86 B.C), when Li Ssu was a petty district clerk in Ch’u, he observed that the rats eating filth in the toilet room were afraid of man and dog; but the rats living in the side-galleries ate wholesome grain from the granary and were not afraid of dog or man; whereupon Li remarked, “A man’s ability or non-ability is similar to these rats. It merely depends upon where he places himself.”
Therefore Li Ssu took up the study of high politics, particularly the study of authority (shih), law (fa) and administrative method (shu) favored by the school of legal scholars who became know as the Legalists. Their primary affection was for authoritarian government in the interest of ruler and state, in contradistinction to government in the people’s interest according to the principles of humanity espoused by various Confucians, Taoists and Mohists. As early as the seventh century B.C., impersonal law had gradually begun to take precedence over ritual morality as the feudal system crumbled and power became more concentrated in the hands of absolute monarchs. Confucius (551-479 B.C.) himself complained that laws were being written on tripods (three-legged ceremonial cauldrons) while the feudal rules of moral propriety, which specified that each person should keep his place according to his relations, were being abandoned: “When those rules are abandoned, and tripods with the penal laws on them are cast instead, the people will study the tripods. How will they then honor the men of rank, and what will the nobles do? When there is no distinction of noble and mean, how can a state continue to exist?”
One of Li Ssu’s fellow law students was Han Fei, a prince of Han whose Legalist essays were soon to be greatly admired by the rising King of Ch’in. Han Fei had abandoned his Confucian studies and taken up Legalism because it was simply more practical and germane to the times: the end of the ‘Warring States’ period. But his advice was not much appreciated by the Han ruler – perhaps Han Fei’s speech impediment detracted from his presentation. In any event, Han Fei resorted to writing his ideas down, and to this day they are an invaluable aid to the understanding of the Legalist doctrine expounded not only by him but by his schoolmate Li Ssu. They are an aid as well to those of our contemporaries who want to succeed in life and who know history is an indispensable lesson to that end.
The Legalist doctrine of Han Fei and Li Ssu is in marked contrast to that of their mutual Confucian teacher, Hsun Tzu, who has been mistakenly identified as the “father of Legalism”, an absurd identification in terms of overall doctrine: if anything, Hsun Tzu was the father of his stiffest opposition. Indeed, after Li Ssu became powerful, he respected him as if he were his father, offering the venerable teacher a nominal post in Ch’in; but Hsun Tzu, by then in his nineties, declined the offer. And no doubt the proceedings of the Ch’in would have been distasteful to him. Yes, Hsun Tzu did diverge from Confucius in a few respects, especially in his belief that men are originally evil, yet he was nevertheless a staunch Confucian in his view that men can be bent straight and true not by reward and punishment but by benevolence, rituals and moral education.
“Lead the people by magnifying the sound of virtue, guide them by making clear ritual principles, love them with the utmost loyalty and good faith, give them a place in the government by honoring the worthy and employing the able, and elevate them in rank by bestowing titles and rewards. Demand labor of them only at the proper season, lighten their burdens, unify them in harmony, nourish them and care for them as you would little children. Then, when the commands of government have been fixed and the customs of the people unified, if there should be those who depart from the customary ways and refuse to obey their superiors, the common people will as one man turn upon them with hatred, and regard them with loathing, like an evil force that must be exorcised. Then and only then should you think of applying penalties.” (translated by Burton Watson, Basic Writings of Hsun Tzu)
Moreover, Hsun Tzu believed power must be tempered by justice, and wars should only be fought to end violence, and not for profit. Good people base their conduct on morality, while depraved people are motivated by profit alone: Confucius considered those profits mere passing clouds while he rested in the pillow of the crook of his arm after eating his meager dinner of rice and water. Again, Hsun Tzu believed, contrary to Confucius’ opinion, men are originally evil; and we can hardly blame him given the warring circumstances of his time. But people can be trained to be good; to that end they should study a limited curriculum, namely, the Classics, including the ones Li Ssu eventually had burned. And there is Hsun Tzu’s link to Legalism; he too advocated an authoritarian response to the troubled times, but by means of education: the central government would have a state monopoly on education. When that monopoly was perfected, there would be no further dialectic or argument presently due to a lack of respect for the ruler’s ‘shih’ (power, authority); of course the ruler would be a model of Confucian virtue. Hence Hsun Tzu despised the military methods and the reward and punishment system of the Ch’in state, and advocated Confucian virtue. His school of thought was eventually represented by the “bookish” Confucian bureaucrats of the Han Dynasty which succeeded the Ch’in Dynasty: they took part in reconstructing the cultural tradition the Legalist approach of Li Ssu and Han Fei had worked so hard to destroy; during the reconstruction, more records were lost than were burned by their predecessors, and the beloved old literature was edited into the authoritative canon handed down to us – in other words, just how Classical the Chinese Classics are is a scholarly bone of contention.
The Legalism of Han Fei and Li Ssu is an altogether different approach to government than the traditional method taught by their teacher. Legalism is a totalitarian form of positive law. Although it is “positive” in the sense it is written down for all to see and obey, it not to be confused with the positive law of a mixed government, such as a constitutional monarchy or a democratic republic, for Legalism ultimately espouses the authoritarian methods of absolute dictatorship.
Legalism does not cater to past precedent but to the needs of the present, particularly the need of the sovereign to rule absolutely, without argument. It rejects the Confucian and Mohist worship and citation of the legendary sage-emperors Yao and Shun; what really happened two thousand years ago simply cannot be known. Han Fei wrote, “To be sure of anything without corroborating evidence is stupidity, and to base one’s argument on anything about which one cannot be sure is perjury. Therefore those who openly base their argument on the authority of ancient kings and who are dogmatically certain of Yao and Shun are men of either stupidity or perjury.”
Legalism denounces moral platitudes and vain talk and demands concrete results. Legalism demands precisely formulated, officially promulgated, and rigorously enforced laws. “A law is that which is enacted into the statute books, kept in government offices, and proclaimed to the people… Therefore for law there is nothing better than publicity.” On the other hand, “secrecy” is the prescription for “statecraft”, for the internal affairs of state, not only for its tactical value in breaking up intrigues, but also to enhance the cult of flawless Royal Power; ‘shih’ is the cornerstone of Legalism, prior to ‘fa’ (law) and ‘shu’ (statecraft).
Ample rewards and severe punishments are the means of enforcement to be directly addressed to the “two handles” of the humans to be handled: pleasure and pain. The prime objective: to prevent disobedience to the ruler’s will and interest; the ruler is an uncommanded commander whose law is beyond dialectical criticism. “To execute is called punishment and to offer congratulations or rewards is called kindness. Ministers are afraid of execution and punishment but look upon congratulations and rewards as advantages,” propounded Han Fei.
Indeed, morality is irrelevant: for instance, people do not steal food because they are evil but because they are hungry; a coffin carpenter does not build coffins to be good to people but because he wants to profit from his work. The ruler’s objective is not to make people good but to restrain them from taking action contrary to the positive law of sovereign authority. Institutions should not be judged by their morality but by their adaptation to change and to the needs of the time. Han Fei writes: “People are submissive to power and few of them can be influenced by doctrines of righteousness. Confucius was a sage known throughout the empire. He cultivated his own character and elucidated his doctrines and traveled extensively within the four seas (China). And yet only seventy people became his devoted pupils. The reason is that few people value humanity and it is difficult to practice righteousness.” And we note that the number of disciples known are half of the ever popular number (seventy) stated.
The ruler must realize that his interests are contrary to those of his subordinates and his own family; he should have no confidence in them: he must hold the supreme, absolute power in his hands alone. If he has confidence in someone, that person will oppose him or will be used by others to subvert his rule. But if he selects his ministers well, on merit alone; if he retains and rewards those who do well, while getting rid of hypocrites and severely punishing mistakes, his government will succeed, even if he is an average or immoral man: society cannot afford to wait around for a hundred or a thousand years for a sage-king or morally superior man to appear on the scene, hence positive law must be the sole guide.
Of primary importance is Equality under law, the equal application of law regardless of the status of the person judged. “If rewards are bestowed according to mere reputation, and punishments are inflicted according to mere defamation, the men who love rewards and hate punishments will discard public law and practice self-seeking tricks and associate for rebellious purposes…” wrote Han Fei.
Of course the ruler will craftily use statecraft to foil plots and intrigues. Rising above all differences to the Equality or “emptiness” of Perfection, he is the inscrutable Power behind the scenes, the Natural Law uniting Heaven and Earth. He is the Pole Star to whom all must turn. He is the Sun, the Central Inspector on tour. He allows everything to fall into place, the assumers to show their hands, the hypocrites to display the disjunction between word and deed, and then….
Mysticism may seem unfitting to the Legalist context of positive law and amoral social science, but we must not be fooled by logical appearances of propriety. Students of Taoism will certainly want to study Han Fei’s comments on the Tao in the context of the relation between the First Sovereign Emperor and his prime minister Li Ssu to see the practical, Legalist application of the occult teaching. Han Fei was fond of Taoism and incorporated it into his Legalist doctrine: “By virtue of resting empty and reposed, (the ruler) waits for the course of nature to enforce itself so that all names will be defined of themselves and all affairs will be settled of themselves. Himself empty, he knows the essence of fullness; himself reposed, he becomes the corrector of motion. Who utters a word creates himself a name; who has an affair creates himself a form. Compare forms and names and see if they are identical. The the ruler will find nothing to regret, since everything is reduced to its reality…” indited Han Fei.
Last, but certainly not least, the economy: the economic strength of the Legalist state depends on its military might. The ruler will encourage productive enterprises such as farming, and discourage unproductive occupations such as that plied by the hordes of scholars who sow the seeds of dissension disguised as benevolent humanism… Giving to the poor what has been earned by the rich is both unfair and unwise.
Now, then, after Li Ssu had completed his studies of the foregoing doctrine, he decided to go to the state of Ch’in to take advantage of the ongoing wars which he perceived as a golden opportunity for politically minded commoners to rise in their careers; while losers, of course, remain passive in mean circumstances. Before departing for Ch’in, he remarked that the King of Ch’in “desires to swallow up the world and to rule with the title of Emperor… One who, abiding in a mean position, decides to remain passive, is like a bird or deer that will merely look at meat… But one who possesses a human countenance can act vigorously. Hence there is no greater shame than meanness of position, nor deeper grief than poverty. To remain long in a mean position or in a condition of privation, criticizing the world, despising profit, and committing oneself to the principle of Non-activity (principle of Taoism) – such is not the nature of a gentleman. Therefore I intend to go westward to give counsel to the King of Ch’in.” (The Shih Chi, Historical Record, quoted here and hereafter)
And the proactive counselor did just that. Li Ssu obtained a position at Ch’in Councillor Lu Pu Wei’s office, and he soon had a chance to speak to the King about the golden opportunity to exercise power over the entire country: “The small man,” said Li Ssu to the King, “is one who throws away his opportunities, whereas great deeds are accomplished through utilizing the mistakes (of others), and inflexibly following them up… The feudal lords at the present time are paying allegiance to Ch’in, as if they were it commanderies and prefectures. With Ch’in’s might and the King’s great ability, (the conquest of the other states would be) like sweeping (the dust) from the top of a kitchen stove. (Ch’in’s power) is sufficient to obliterate the feudal lords, bring to reality the imperial heritage, and make of the world a single unity. This is the one time of ten thousand generations.”
King Cheng, pleased with this advice, made Li Ssu Senior Scribe and “listened to his plans, and had him secretly commission plotters, bearing gold and precious stones, to travel about and advise the feudal lords.” Those who took heed were rewarded; those who did not were “stabbed with sharp swords.”
Li Ssu became Alien Minister. Shortly thereafter, a plot by an alien in Ch’in was exposed: upon the urging of his ministers, the King order aliens including Li Ssu expelled from Ch’in. As the former Alien Minister approached the border to leave the state, he sent back a memorial to the King, setting forth an extended argument in favor of employing aliens. In short, since the state of Ch’in owed its prosperity to sound advice given by alien advisors to former Ch’in rulers, as well as to the importation of the good things in life such as treasure, music, dancing, and beautiful women, it would be extremely unwise to expel aliens from the country. “Now there are many articles not produced in Ch’in and yet valuable, and numerous gentlemen who have not been reared in Ch’in and are yet desirous of being loyal. If at present you expel aliens so as to give increment to opposing states, and decrease your people so as to make addition to the enemy, then you will find yourself depopulated at home and will have established (sowers of) enmity against you among the feudal lords abroad. Should you then wish to have the country without danger, you could not obtain it.”
The King rescinded the order to expel aliens and Li Ssu was recalled to office. Another alien, Li Ssu’s old schoolmate Han Fei, was forced to commit suicide by an apparently jealous Li Ssu – the very sort of thing Han Fei had expressly warned rulers about.
No doubt the ancient School of Five Elements powered by Yin and Yang would be amused by our maxim, “What goes around comes around.” Li Ssu had an occasion to write yet another, even more critical “memorial” in prison, just prior to his execution after more than thirty-five years of distinguished and mostly loyal service to the First Sovereign Emperor. Just two years after the Emperor’s death, Hu-hai, his youngest son and illegitimate successor, had Li Ssu convicted on trumped-up charges of sedition, and punished by being cut in half at the waist in the market-place of the capital.
Unfortunately for Li Ssu and the future of the empire, Li Ssu had reluctantly participated with Hu-hai and the evil eunuch Chao Kao in the conspiracy to prevent the eldest royal son Fu Su from taking the throne. Li Ssu knew too much; he had to be disposed of. He falsely confessed to sedition under torture of one-thousand floggings. Yet in an attempt to escape the death penalty, he submitted a “memorial” or confession of his “crimes”, which were really his accomplishments. The list includes many achievements I shall with all due respect, in yet another chapter of this ancient, success story, attribute to the majestic First Sovereign Emperor of China. After all, His Majesty has the Power to get everything done by doing nothing himself, and He may have his Grand Councillor executed at any time. But it would be unfair to conclude without citing Li Ssu’s memorial, rejected by Chao Kao on the grounds that it is inappropriate for prisoners to submit memorials.
“Your servant has become Grand Councillor, and has administered the people for more than thirty years. When he arrived within Ch’in’s narrow confines, during the time of the former King, Ch’in’s territory did not exceed one thousand li, and its soldiers did not number more than a hundred thousand. Your servant used his meager talents to the utmost, carefully establishing laws, secretly sending out plotters, giving them gold and precious stones, and causing them to travel about and advise the feudal lords, and secretly to prepare armor and weapons. He spread the teachings of (imperial) government, gave position to men of arms, honored meritorious officials, and enriched their ranks and revenues. In this was it was possible to seize Han, weaken Wei, destroy Yen and Chao, raze Ch’i and Ch’u, and so finally annex the Six States, make captives of their kings, and establishing (the King of) Ch’in to be Son of Heaven. This is his crime number one.
“(Although thus Ch’in’s) territory was certainly not lacking in extent, he also expelled the Hu and Ho (barbarians) along the north, and imposed rule upon the various Yueh in the south, thus manifesting Ch’in’s power. This is his crime number two.
“He honored the great ministers and enriched their ranks and position, so as to strengthen their attachment. This is his crime number three.
“He established the altars of the soil and grain, and repaired the ancestral temple, in order to make his ruler’s merit illustrious. This is his crime number four.
“He reformed harmful policies, equalized the tou (10.35 litres) and hu ( 5 tous) measures, the measures of weight and size, and the written characters, and made these universal throughout the empire, thus establishing Ch’in’s fame. This is his crime number five.
“He laid out imperial highways and inaugurated (imperial) tours of inspection, in order to show (to the people) that their ruler had attained to his every desire. This is crime number six.
“He relaxed the punishments and reduced the collection of taxes in order to further his ruler’s (efforts to) win the hearts of the masses, so that the people might honor their ruler and not forget him after death. This is his crime number seven.
“The crimes of one who, as a minister, behaved as (Li) Ssu had done, would certainly have merited death already long ago; yet the Emperor has been gracious enough to make use of his ability to the utmost even unto the present time. May it please your majesty to look into the matter.”
Li Ssu was executed along with his alleged co-conspirator, his second son, Yu. As they were being led from the prison, they reminisced about hunting hares with their old yellow dog, then wept. Their kin were exterminated to the third degree – parents, wives, brothers, children.
All quotes of Ch’ien Ssu-ma’s (145-86 B.C.) Shih Chi (Historical Record) are taken from Derk Bodde’s translation set forth in his book, China’s First Unifier, published by Hong Kong University Press in 1967. Derk Bodde’s works are an indispensable standard Western reference for the student of ancient China.
All but the last two quotes of Han Fei are taken from Wing-Tsit Chan’s translation in his book, A Source Book in Chinese Philosophy, published by Princeton University Press in 1963.
The last two quotes of Han Fei are from E.R. Hughes’ translation of Han Fei in his book, Chinese Philosophy in Classical Times, published by E.P. Dutton, New York, in 1954.
Arthur Probsthain of London has published W.K. Liao’s translation, The Complete Works of Han Fei Tzu, to which the serious student is recommended.