The Confucian Section

1.“Western Inscription” by Zhang Zai 张载 (1020-1077).

Heaven [qian乾] is called my father and Earth [kun坤] is called my mother. And I, this tiny thing, find an intimate place in their midst.

Hence, what fills Heaven and Earth is my body, and what directs Heaven and Earth is my nature.  All people are my siblings, and all living things are my companions.  The great ruler is the eldest son of my parents, and his ministers are his retainers.  To respect those great in years is the way to “treat the elderly as elderly should be treated.”  To be loving to the orphaned and the weak is the way to “treat the young as young should be treated.”  …All in the world who are tired, infirm, crippled, or sick; brotherless, childless, widows or widowers – they are all my siblings who are helpless and have no one else to appeal to. ...

Riches, honor, good fortune, and abundance shall enrich my life, while poverty, humble station, care, and sorrow shall discipline me to fulfillment.  In life I follow and serve [Heaven and Earth], and in death I shall be at peace.[1]

2.A passage from 4:5a-6a of Sayings of the Confucian School (孔子家语) (Vol. 4, Chapter 15, “Six Essentials” (六本)). 

While doing some farming work, Zeng Zi [Master Zeng, also called Zeng Shen] accidentally cuts off the root of a melon plant.  Zeng Xi [or Tseng Hsi, Zeng Zi’s father, the person who appeared in 11.25 of the Analects] is so mad that he uses a big stick to strike his son on the back [probably many times].  Zeng Zi is left unconscious on the ground for a long time.  When he comes to himself, he gets up, and goes to see Zeng Xi, saying: “I did something wrong to make you [literally, “the big man”] angry.  You severely educated me [i.e., the harsh physical punishment], which is all right.”  When Zeng Zi returns to his room, he plays Qin (a musical instrument) and sings, because he wants his father to hear and thus know that he is fine.  When hearing about this, Confucius is mad, and says to his disciples: “when Shen comes, don’t let him in.”  Zen Shen thinks that he has done nothing wrong, and sends someone to ask Confucius [why he is not let in].  Confucius says: “In the past Gu Sou [the blind old man, Shun’s murderous father] has a son called Shun.  In Shun’s service to Gu Sou, whenever Gu Sou wants Shun [to help him with some daily matters], Shun is always there for him.  But when Gu Sou wants Shun dead, Gu Sou can’t get Shun.  One should only endure light physical punishments [from one’s father], but when it’s big sticks [i.e., severe physical punishments], one should run.  Then, Gu Sou wouldn’t commit the crime of not being a father, and Shun wouldn’t lose his pure filial love.  Now in the case of Shen’s service to his father, he subjected his body to [his father’s] rage, risking death by not running away.  If he had been dead [as a result of this punishment], it would have made his father un-righteous.  Nothing violates filial love more than this.  Aren’t you one of the people of the Son of Heaven?  What kind of crime is to kill the people of the Son of Heaven?”  Zeng Shen hears about this and say, “Shen’s crime is indeed severe!”  He then visits Confucius and apologizes [for his mistake].

3.From Record of Instructions传习录 by Wang Yangming王阳明 (1472-1528)

Someone asked, “A great man and an object are one, but why does The Great Learning also say that something is favored [literally, the Chinese term, “hou (厚),” means “thick”] and something is not [literally, the Chinese word, “bo薄,” means “thin]?”  The master [Wang Yangming] said, “in principle, there are naturally something favored and something not.  For example, body is one, but [if there is a danger,] hands and feet are used to protect head and face.  Does this mean that hands and feet are not favored?  This is how it should be.  We love both beasts and plants, but the heart can bear to use plants to feed beasts.  We love both human beings and beasts, but the heart can bear to slaughter beasts to feed family, to make sacrifices, and to treat guests.  We love both the closest kin and people in the street.  But if there is little food and soup, one can survive if one gets it and will die if one does not, and the food is not enough to save two, the heart can bear to save the closest kin and not the person in the street.  This is how it should be.  When it gets to my body and the closest kin, we cannot make distinctions anymore.  For to treat people humanely and to treat things lovingly comes from this [love of one’s own body and closest kin].  If one can bear [to do anything] here, one can bear [to do anything] anywhere….

4.Six extant cases of “Using the Spring and Autumn Annals in legal ruling” by Dong Zhongshu (179-104 B.C.E.) (I’ve consulted George Remisovsky’s translation in his master thesis at Fudan University, and Michael Loewe’s article, “Dong Zhongshu as a Consultant, Asia Major, Third series, Vol. 22, No. 1 (2009), pp. 163-182).

1)There was a case that is difficult to adjudicate, which is as follows. “A does not have children, and took in B, who was abandoned by the side of the road, as his own son and raised him. After B matured, he committed the crime of homicide and told A what he had done. A covered for B’s crime. What should be done with A?”  Dong Zhongshu’s judgment was, “A is without children and saved the life of B. Although he is not the biological child of A, is there anyone who would be able to replace him in that role? The Book of Poetry says: ‘The mulberry insect has young ones, and the sphex carries them away.’ A principle of the Spring and Autumn Annals is that fathers cover for their sons. A was correct in covering for B’s crimes, and he should thus not be sentenced.”

2) “A has a son and asked C to help care for him. B came of age and was taught and raised by C. A, due to having become inebriated, said to B, ‘You are my son.’ B was angered and flogged A twenty times.  Not being able to swallow the fact that B was actually his son [and dared to beat him up], A went to report the crime to the country magistrate.”  Dong Zhongshu’s judgment was: “A can give birth to B, and yet he could not raise or educate him. He besought C to do it for him, and the principle [governing the relationship between father and son] was terminated thus. Although B flogged A, he should not be sentenced.”

3)“The Lord when hunting captured a young deer, and asked a minister to carry it back with him. Along the road, the minister saw the deer’s mother following and wailing, and he was moved and released the young deer. The Lord was angered, but the crime and appropriate punishment was yet to be determined. The Lord is sick and afraid of death, and hopes that he might entrust his son to someone. He now sees how humane this minister was, and if he could be so kind to a young deer, he could be even more so to a human being.  Therefore, he released the minister and made him his son’s mentor. What should one make of adjusting the sentence thus?”  Dong Zhongshu said, “An exemplary person gathers neither the young nor the eggs of any species. For the minister to not have criticized the lord for this fault and begin to bring the young deer back was not an act of humaneness. But since he felt the love shown by the deer’s mother along the way, though he abandoned his Lord’s order, he could be a mentor to lord’s son.”

4)“A, a conscript at the arsenal, stole the bowstring of a heavy crossbow. At that time it was in a different place from the crossbows. What crime should he face? An argument was: ‘The place of armaments is similar to the gate of the imperial palace. Those who enter without authorization are to have their heads shaved. This shows the importance of the armaments and the responsibility of keeping the weapons of high quality. The bow’s stock, trigger, housing, string, and axle are kept in different places. The robber did not reach all of these places and thus did not steal the weapons of the arsenal.’  Another argument says,‘if the large carriage lacks a yoke for oxen, and the small carriage lacks the harnesses for horses, how could one hope to move them? A stole weapons from the armory, should he be executed in public?”The reply was: “Although the bowstring was in a different place from the crossbow, a crossbow surely should not be called such without it. Shooting arrows without hitting their target is like not shooting any arrows, and not entering the armory is the same as having no bow. The law states, ‘this low-grade weapon is worth one hundred cash, and that public execution is the proper sentence.’” [There are a few textual issues involved in this case.  In particular, the last sentence is suspected of being from another text, and Dong’s suggestion is perhaps to charge this conscript with the crime of stealing properties, rather than stealing armors, which is a capital crime.]

5) “A’s father B had an argument with C that developed into a struggle, and C used a dagger to stab B.  A immediately used a cane to attack C, but unintentionally hurt B in the process. What should be the proper adjudication for A’s actions? If it is a case of beating one’s father, then his head should be cut and displayed.”  Dong Zhongshu argued, “Your humble servant takes this to be an example of the care displayed between father and son. Upon hearing of such a struggle, there is not a single man who would not be frightened by such a situation. Using a cane to save his father is not the same as using it to humiliate him. The principle according to the Spring and Autumn Annals is, Xu Zhi gave medicine to his sick father that ultimately resulted in his father’s death. An exemplary person is to evaluate intentions, and to educate and not to execute [in this case]. What A did is not what the law calls ‘beating one’s father,’ and he should not be sentenced.”

6)“A’s husband B was travelling in a boat, the seas had heavy winds and the boat was lost, resulting in the drowning of B, and no funeral was held. Four months later, A’s mother C would like to marry A off. We would like to know how this case should be handled. Should it be that A’s husband died without a funeral, and thus the law doesn’t allow for a new marriage, making this marriage illegal and resulting the public execution [of B]?”  Dong replied, “Your humble servant believes that the principle of the Spring and Autumn Annals is that when the Lady returned to Qi, her husband had died and she was without a male companion, and that in this case marrying anew was done in a proper manner. The woman in this case did not act selfishly against authority and do as she pleases. To follow instructions is to be obedient, and to marry is a woman’s calling.  A was also married by a senior, and there was no transgression in terms of committing lechery. This does not constitute an illegal marriage. It is clear in determining this case that none have committed criminal acts and they should thus not be sentenced.”

The Legalist Section

5.The first paragraph of Chapter 48 of the Han Fei Zi (LWK, with my revisions)

Generally speaking, to govern All-under-Heaven must accord with the fact of human beings. The fact of human beings is that they have likes and dislikes, wherefore reward and punishment can be applied. If reward and punishment are applicable, prohibitions and orders will prevail and the course of government will be accomplished. As the ruler has the handles in his grip and thereby upholds his august position, what is ordered is acted on and what is prohibited is not. The handles are regulators of life and death; the position is the means of overcoming the masses.

If dismissal and appointment have no constant rule, the sovereign's prerogative will be profaned; if matters of reward and punishment are administered in common by the sovereign and the inferiors, the sovereign's authority will be shaken. For this reason, the intelligent sovereign does not listen with the attitude of love nor does he scheme with the sense of delight. For, if he does not compare the words he heeds, his prerogative will be shaken by rapacious ministers; if he does not make use of the ministers' wisdom and strength, he will be harassed by the ministers. Therefore, the sovereign, when enforcing regulations, is as magnificent as heaven, and, when using men, is as mysterious as the spirit. For heaven cannot be confuted and the spirit cannot be harassed by human beings. When the position functions and the training is strict, though the ruler acts contrary to the world, nobody dares to disobey. Once blame and praise prevail under a unified system, nobody dares to dispute. Therefore, to reward those with merits [i.e., those who follow orders] and punish those who violate [the orders] is the best way to exalt good people……

Now, rewards should not be otherwise than liberal, so that the people will consider them profitable; honors should not be otherwise than attractive, so that the people will consider them glorious; censures should not be otherwise than strict, so that the people will consider them severe; and blame should not be otherwise than odious, so that the people will consider it disgraceful. Thereafter, the ruler will universally enforce his laws……

6.From Chapter 9 of the Han Fei Zi (BW, with my revisions)

[Among the eight villainies, the fifth is [making use of] the people].  What do I mean by [making use of] the people?  [My answer] is: a minister distributes public funds in order to gratify the people, and hands out small favors in order to win the hears of the hundred surnames [the people], so that everyone in both court and countryside praises him alone, which he will use to block his ruler[’s decision-making] in order to achieve what he desires.  This is what I mean by [making use of] the people.

7.From Chapter 9 of the Han Fei Zi (BW, with my revisions)

As regards the things the ruler enjoys seeing and playing, he should make certain that they are presented to him on some basis, so that the ministers can never be permitted to present or take back them as they please, and can never ingratiate themselves with him.

8.From Chapter 30 of the Han Fei Zi (LWK, with my revisions)

[Explaining/illustrating a “cannon” (“making punishment definite and authority clear”) he offered earlier, Han Fei Zi gave the following stories:]

。。。Zi Chan, Premier of Zheng, when ill and about to die, said to You Ji: “After my death you will certainly be appointed Premier of Zheng. Then be sure to handle the people with severity. Indeed, fire appears severe, wherefore men rarely get burned; water appears tender, wherefore men often get drowned. You must not forget to make your penalties severe and do not immerse yourself in tenderness.” ……

……

The Law of Yin would punish anybody throwing ashes into the streets. This Zi Gong [a pupil of Confucius’s] regarded as too severe and so asked Confucius [what is actually used here is Confucius’s name, Zhong Ni] about it. “They knew the right way of government, replied Confucius. “Indeed, ashes thrown into the streets would blow into the eyes of the passers-by and obscure their sight. And if anybody obscures the sight of others, he would irritate them. When irritated, they start quarrelling. On quarrelling, each side would mobilize their three clans [that of his father’s, that of his mother’s, and that of his wife’s] to slaughter the other. It means that throwing ashes into the streets leads to the mutual onslaught between the three clans of both sides. Therefore it is right to punish any offender. Indeed, heavy punishment is disliked by the people, but throwing no ashes is easy to them. To make the people do easy things and not ignore their dislike is the right way of government.”

According to another version, the Law of Yin would punish anybody throwing ashes into the streets with his hands cut off.  Zi Gong said: “The crime of ash-throwing is light but the punishment of hand-cutting is heavy. Why were the ancients so harsh?” [In reply Confucius] said: “Not to throw ashes is easy but to have hands cut off is disliked. The ancients considered it easy to enforce the easy so as to prevent the disliked from happening, which is why they enacted the law.”

……

The Law of Gongsun Yang [Lord Shang] took minor offences seriously. Major crimes are hard for men to commit while small offenses are easy for men to remove. To make men get rid of what is easy to get rid of and not ignore the difficult ones is the right way of government. Indeed, when small offenses never appear, big crimes will not come into existence. For this reason, men committed no crime and disorder did not appear.

According to another version, Gongsun Yang said, “In applying punishments, punish the light offenses with heavy penalties.  Then those who commit light offenses would disappear, let alone those who would commit major ones.  This is what is called ‘getting rid of punishments by means of punishments.’”

In the southern part of Jing the bottom of the Li river produced gold-dust, and many men in secret dug it out. In accordance with the prohibition law, anyone who gets caught will be immediately cut into pieces in the markets place. So many died from this and their corpses blocked that river.  Nevertheless, people never stopped stealing gold-dust. Indeed, no chastisement is more severe than being cut into pieces in the market place, but people were not stopped.  For getting caught is not a certainty.  Now, if someone says here, “I will give you the reign over All-under-Heaven and put you to death,” then even a mediocre man would not take the offer. Indeed, the reign over All-under-Heaven is a great advantage, but no one would accept it because he knew he would be certainly put to death. Therefore, if it is not certain [that they would be punished], people would not stop stealing gold-dust despite the punishment of being cut into pieces. But if they know they face certain death, then they would not dare accept even the reign over All-under-Heaven.

[Once a fire threatens to burn down the capital, and the people were hunting down the animals drive out of the swamp by the fire and not helping to put out the fire.  Being asked how to get people’s help, Confucius said:] “This is urgent, and to offer reward wouldn’t do.  Moreover, if you reward all those who helped to put out the fire, then even the wealth of the whole state wouldn’t be enough for rewarding them.  Please apply punishments only.” [With the order to punish anyone who didn’t help to put out the fire or hunted the animals, the fire was put out quickly.]

……

9.From Chapter 46 of the Han Fei Zi (LWK, with my revisions)

Now, those who do not know the path to order all say: “Heavy punishmentsharm the people. If light ones can suppress villainy, then why should heavy penalties benecessary?” Such speakers do not understand how to achieve order. What is stopped by heavy punishments is not necessarily stopped by light ones; but what is stopped by light ones is always stopped by heavy ones. For this reason, when thesuperior sets up heavy punishments, all villainieswill be stopped. If all villanies disappear, how can this harm the people?In applying heavy punishments, what the villain can gain is slight, but what the superior can inflictis great. As the people never venture a big penalty for the sake of a small gain, villainies will eventually be stopped. In applying light punishments, however, what the villaincan gain is great, but what thesuperior can inflict is slight. As the people long for the profit and shrug off the light punishment, villainies will never be stopped. Thus, the ancient sages had a proverb, saying: People do not stumble against a mountain, but do over an ant-hill.” The mountain being large, everyone takes notice of it; the ant-hill beingsmall, everyone disregards it. Now if punishments are lightened, people would disregard them [and many would commit offenses]. Not to punish the offenders means the abandonment of the state.  But to censure the offenders is to entrap the people. Thus, light punishmentsare like an ant-hill to the people. For this reason, the policy of lightpunishments would either bring disorder to the state or entrap the people. Such a policy may thus besaid to harm the people.

10.From Chapter 53 of the Han Fei Zi (LWK, with my revisions)

If punishments are heavy and rewards are few, it means that the superior loves the people, wherefore the people willdie for rewards. If rewards are many and punishments are light, it means that the superior does not love the people,wherefore the people will never die for rewards. …… In punishment, light offences should be punished severely; if light offences do not appear, heavy ones will not come. This is said to be to eliminate punishments by means of punishments. If crimes are severe but punishments are light, they breed further troubles. This is said to createpunishments through punishments, and such a state will certainly be weakened.

11.From Chapter 14 of the Han Fei Zi (LWK, with my revisions)

The sage is the one who scrutinizes the facts of right and wrong and investigates the conditions of order and chaos. Therefore, when governing the state he rectifies laws clearly and establishes penalties severely in order to rescue all living beings from chaos, rid All-under-Heaven of misfortune, prohibit the strong from exploiting the weak and the many from oppressing the few, enable the old and the infirm to die in peace and the young and the orphan to grow freely, and see to it that the frontiers be not invaded, that ruler and minister be intimate with each other, that father and son support each other, and that there be no worry about being killed in war or taken prisoner.Such is one of the greatest achievements.

Yet the stupid men do not understand it and condemn it as draconian. Of course, the stupid men want order but dislike the path to order. They all hate danger but welcome the path to danger. How do I know this? For severe penalty and heavy conviction are hated by the people, but by them the state is put in order. Mercy and pity on the hundred surnames [the people] and mitigation of penalty and punishment are welcomed by the people, but by them the state is endangered. The sage who makes laws in the state is always acting contrary to the prevailing opinions of the age, but is in accord with Daode [presumably, the laws of politics]. Who understands Daode, will agree with the principles of justice but disagree with the commonplaces of the world. Who does not understand Daode, will disagree with the principles of justice but agree with the commonplaces of the world. If throughout All-under-Heaven those who understand Daode are few, then the principles of justice will generally be disapproved.

12.From Chapter 14 of the Han Fei Zi (LWK, with my revisions)

In antiquity, there were men named Boyi and Shuqi. When King Wu offered to transfer the governing of All-under-Heaven to them, both declined it and starved to death on the Shou-yang Mound. Ministers like them, neither afraid of heavy censures nor fond of big rewards, cannot be prohibited by punishment, nor can they be encouraged by reward. They are the so-called ministers of no use. They are what I make light of and cast aside, but are what rulers of the present age think much of and seek out.

A Hybrid?

13.From the Hanshi Waizhuan

[1]For other English translations, see Chan 1969, 497-498 and Bryan Van Norden’s translation which is available on line (http://faculty.vassar.edu/brvannor/Phil210/Translations/Western%20Inscription.pdf, accessed on 08/20/2011).