So the Han dynasty owed much to the work of the Law School. But it was natural, that after the radicalism of the Ch'in dynasty, a period of reaction should set in. The Han dynasty profited by the abolition of the feudal system, carried through by Ch'in's energy, but once its power was firmly established, the great stress was gone in which the Warring States had continually lived. Liu Pang's saying, that on horseback he had conquered the Empire, and on horseback he proposed to hold it, proved false. More was needed than brute strength. The aim had been reached, the world was united under one sway; the ideals set by the Law School had outlived themselves. Once more there was room for the activities of the scholars who were interested in cultural and moral life. The Confucian tradition of the identity of natural and moral law, in which the person of the Son of Heaven played so great a part, acquired a new significanoe. Strengthened by the radical reforms which Ch'in had effected, the Han saw in the Confucian doctrine a powerful means for placing the authority of the Emperor on a strong moral basis, without immediately running the dangers which had ruined the Chou house. Encouragement was soon given to the rediscovery of the ancient books, and that movement began, which has for ever marked Chinese civilization with the stamp of antiquity, and has enthroned the Confucian tradition as the authority for all ages.

Thus, while profiting from its work, China has rejected the doctrines of the Law School. The gulf between law and ethics, created by the Law School, was bridged by again restricting law to merely penal law, containing sanctions on the observance of the recognized rites and customs. Law became again firmly

embedded in ethics; it never acquired authority as independently regulating norm of conduct. Down to the most modern times measures in imperial mandates were justified by invoking the natural moral law; the standard of conduct was li, not fa, the state-law. The crude attempts of the School of Law to regulate life by man-made law has scared the Chinese mind away from attempts in that direction, even from codification of the existing customary law, from any other point of view than that of the penal. The Jurists wanted to make law, without any touch with the people's sense of right and wrong, into a dead mechanism, which worked automatically like a compass or a pair of scales. They ruled out entirely the source of law, which lies in the development of life itself. Hsün-tzů has very well drawn attention to this mistake. He says: "If there are laws, but they are not discussed, then those cases, for which the law does not provide will certainly be treated wrongly."1 Law can never be complete and should be supplemented by the standards which live in the people. This last truth, so long forgotten in the western conception of law, when the Juristenrecht prevailed, has always been alive in China. It has led to the other extreme of making law but a reflex of natural, customary law, without any regularizing force of its own. It is not understood that a thing may be right or wrong, merely because it is allowed or forbidden by the government; everything is judged according to the intrinsic moral value which it has, measured by the supposedly-known natural law.

1 Hsün-tzŭ, ix, p. 4. My translation differs from Dr. Dubs, who renders the phrase by (op. cit., p. 123): "For if he goes by law but does not look into things, then those cases to which the law is not applicable will certainly be done wrong."

K

Government measures are therefore obeyed, in so far as they correspond with this popular sense of rightness, not merely because it is positive law. Therefore innovations, which are not consecrated by custom, are ignored. This is one of the great problems which modern China has to face. In a modern state, with highly complicated economical and social conditions, the old conception of law is ill-fitted. It is necessary again to create respect for the law, because it is law. This long-forgotten message of the School of Law has acquired a new actuality. A study of their doctrines, with all their one-sidedness, has therefore even more value than a purely historical one: it may help to give the Chinese of to-day a deeper understanding of the great problem of the sovereignty of law, with which they are confronted.

CHAPTER IV

THE TEXT OF THE BOOK OF LORD SHANG

§1. History of the Text

Han Fei-tzu mentions the "Law of Kung-sun Yang "1 or the "Law of Lord Shang" 2 and says that "in every house there are those who preserved the laws of Kuan Chung and Shang Yang " This is the oldest reference to a book. Ssu-ma Ch'ien at the end of his Biography of Shang Yang says: "I have read the books K'ai-sai and Keng-chan * by the Lord of Shang, which are in keeping with the deeds he did. There was indeed reason enough why he should have finally left a bad reputation in Ch'in.”

The 7th paragraph of the present book is called K'ai-sai and the 3rd Nung-chan,5 which has the same meaning as Kengchan. A section bearing that exact title does not now exist.

The Han Catalogue, under the heading "School of Law," " mentions "The Lord of Shang, in 29 sections "7; under the heading "Military Treatises ",8"Kung-sun Yang, in 27 sections." This book is not heard of further, and is generally thought to have been a different one from the first 10; possibly paragraphs 10, 11 and 12 are reminiscent of it.

10 Wang Shih-jun (see infra) believes it to have been the same book.

In the "Collected Writings of Chu-ko Liang " 1 mention is made of "The Book of Lord Shang "," as a book worthy of study: "The First Ruler' gave on his deathbed the following recommendation to the Later Ruler': Read the Han books, the Li-chi, and, when you have leisure, glance over the various Philosophers and the Six Chapters on Strategy; the Book of Lord Shang benefits one's knowledge.'

The next reference to the book occurs in the catalogue of books in the History of the Sui dynasty (589-618), which mentions: "The Lord of Shang, in 5 chapters, written by the minister of Ch'in, Wei Yang." 6

The chapter on literature of the Old T'ang History mentions "The Book of Lord Shang, in 5 chapters," and the corresponding chapter in the New T'ang History repeats this statement and adds: "written by Shang Yang, by some called Shang-tzů," 8 i.e. the Philosopher Shang.

According to the Ch'ün-shu-chih-yao,' compiled by Wei

2 諸葛亮集

* The reference is to

* 商君書

Liu Pei, "The First Ruler," who died in

223 and confided his son the "Later Ruler" (223-265) to Chu-ko

Liang's care.

• The "Six Chapters on Strategy" is supposed to be an old military

treatise. Cf. Wylie, n., p. 89.

6

*商君書益人意知

商君書五卷秦相衛鞅譔.

『商君書五卷

8

△ 商鞅譔,或作商子

#; Cf. P. Pelliot, Notes de bibliographie chinoise,

in Bulletin de l'école française d'extrême orient, ii, p. 315. This book was lost in China from the Sung dynasty and came back from Japan at the end of the eighteenth century.