about the legality or otherwise of administrative actions or people's conduct.1 Their interpretations of the law are put on record and "on the death of the officer, affairs should be transacted according to these files," So there is continuity and progression in legislature, there is real jurisprudence. Careful regulations are made for the preservation in archives of all the laws, and heavy punishments are fixed for illegal alterations made in the text of the law. Special students are set to study the contents of the law, so that at the death of law-officials there are always competent men for law-interpretation.3 The result of this system will be that "there shall be no one among the government officials and people of the Empire, who does not know the law, and as the officials are clearly aware that the people know the laws and mandates, they dare not treat the people contrary to the law, nor dare the people transgress the law, as they would come into conflict with the law-officers." 4 The law will then be understood by everybody, stupid and wise alike, and the people will be "prevented from falling into dangerous pitfalls". "So the fact that when the Sages established the Empire, there were no victims of capital punishment, was not because capital punishment did not exist, but because the laws, which were applied, were clear and easy to understand. . . . They knew that if the ten thousands of people all knew what to avoid and what to strive for, they would avoid misfortune and strive for happiness, and so restrain themselves "5

From the crude ideas of the older part of the Book to these conceptions is a great step. It is very doubtful whether such

a scheme as here propounded has ever had practical application; it is possible, however, that the institution of the censorate, which is not unlike that of the law-officers-with the difference, that it is the rites, rather than the law, which they are called upon to uphold-owes some of its features to the ideas here emitted for the first time.1

§4. Influence of the School of Law

We have seen how the School of Law developed under the stress of the struggle for existence of the contending states. The law, which it proclaimed, was one which destroyed the privileges of feudalism, aimed at centralization and created power for the state. It was anti-cultural and anti-moral, because it was on traditional culture and morality that the position of the noble classes was based and from which they took their standards of conduct. This conception of law was enriched by the more truly philosophical tendencies of the age, which insisted that name and reality should correspond, that rights and duties should be defined, and it received more depth from the Taoist conception of governing without actual interference. Just as the Confucianists claimed for li the authority of antiquity, so did the jurists gradually for their principle of law, at the same time, however, maintaining that different conditions demanded different laws.

They had the unusual chance that for a time their main principles were adopted by the state of Ch'in. By strong centralization, efficient military organization, land-reform, replacement of feudalism by a well-disciplined bureaucracy,

1 Cf. also O. Franke, Der Ursprung der Chinesischen Geschichtschreibung (Sitzungsberichte der Preuss. Akad. d. Wissensch., 1925, xxiii, p. 305).

and a far-sighted policy, did it succeed in conquering the whole Empire. In a cultural respect Ch'in was a backward country, more than half "barbarian" in origin. Hsün-tzů, who had travelled there, on being asked what he had seen, said that the people were simple, that there was little music, that clothing was not very refined, and that the officials were feared, and that it was regrettable that there were practically no scholars.1 Elsewhere he says that the people of Ch'in are wanting in the observance of the right conduct between father and son, husband and wife, because they are remiss in observing the rules of proper conduct (li) and righteousness (i).2

That in such a country an anti-cultural doctrine easily prevailed is not surprising. We have seen how in the Book of Lord Shang different "lice" are enumerated, and it is of particular interest to notice in this list the Odes and the History, those two pets of the Confucian school. A tradition, recorded in Han Fei-tzu,3 says, that the Lord of Shang taught Duke Hsiao "to burn the Odes and History". Too much reliance cannot of course be placed on this tradition, but we may assume as certain that a strong opposition to the study of these books existed in the circles influenced by the Law School. Han Fei-tzů is very explicit on this point. In one of his most important chapters he says: "Therefore in a state of an intelligent ruler, there is no literature of books and bamboo tablets, but the law is the only doctrine; there

1 Hsün-tzů, xvi, pp. 14, 15. For scholars the character ju is used, meaning Confucian scholars.

2 Ibid., xxiii, p. 11; Dubs, pp. 311, 312.

Chap. 4, par. 13, p. 21. This is not mentioned among the genuine books by Hu Shih.

Chap. 19, par. 49, p. 14. The chapter is admitted as genuine.

are no sayings of former Kings, but the officials are the only models." Now this becomes of enthralling interest, when we remember that the First Emperor, Ch'in Shih-huang-ti, read and appreciated the chapter in which such words occur. For Ssu-ma Ch'ien records that, upon reading the sections Ku-fen and Wu-tu 1 (which is that just mentioned), Shihhuang exclaimed: "Oh, could I only meet this man; with him I could even go to death without regret !" 2 This leaves no doubt but that it was the anti-cultural teaching of the School of Law, which had prepared the mind of Ch'in Shihhuang-ti for the deed by which he incurred the hatred of all later generations: the Burning of the Books in 213. Li Ssă, in advising him to this action, merely put into practice what the Law School had been teaching for decades, and he found a willing ear in his master, who, no less than the mighty Corsican to whom he is often compared, detested "tous ces idéologues".

The doom of the Law School was sealed with the fall of the short-lived Ch'in dynasty, with which it had been so closely affiliated. This did not mean that its influence came to an end. For the institutions of the Ch'in dynasty, formed by the Law School, profoundly influenced those of the Han.

3

Right at the beginning we read that Hsiao Ho, the great Councillor of Liu Pang, who became the first Emperor of the Han dynasty, as soon as he had occupied the capital of the Ch'in, took special care to preserve the maps and laws. 5 -We know, too, that he was particularly interested

1

and ; i.e. pars. 11 and 49 of the present Han Fei-tzu ed. 蕭何‧

2 Shih-chi, chap. 63.

3

“劉邦

5 Cf. his biography in Shih-chi, chap. 53, p. la, also in Ch'ien-han-shu,

chap. 39, p. la.

2

8

in the Fa-ching, 1 in 6 sections, which had been composed by the same Li K'uei, the Minister of the Marquis Wen of the state of Wei (424–387), whom we have already met in connection with his economic calculations. To this law, the oldest Chinese law of which the memory has been transmitted, and which evidently formed part of the code of the Ch'in, he added three sections, called Shih-lü.3 Minister Shu-sun T'ung, who had also drawn up a Court ceremonial for the first Han Emperor,5 added 18 sections to this. Finally 27 sections from the Yüeh-kung-lü,6 by Chang T'ang,' Minister of Justice, who was notorious for his severity, and 6 sections from the Ch'ao-lü,9 by Chao Yü,10 another statesman of the time of Wu-ti, were added to all this about the year 119 B.C., and this collection of 60 sections together formed the Han-lü,11 the Code of the Han dynasty. In the second century A.D. Ma Jung 12 and Cheng Hsüan 13 wrote their commentaries on this code.14 It was unfortunately lost before the sixth century. In view, however, of the strong sense of tradition which the Chinese have always shown in their institutions, it is not unreasonable to suppose, that through indirect channels, part of it found its way into the codes of following dynasties. In any case it helped to form the mind of the Chinese in judicial matters,

*事律 “叔孫通

It is said, that the rough Emperor was so much impressed by it, that,

when the ceremonies were over, he exclaimed: Now I know what it

11 漢律

. Cf. Wieger, La Chine, p. 89.

10

12 馬蝠

13.

14 Pelliot, Notes de bibliographie chinoise, B.E.F.E.O., ix, pp. 124, 125.