Can punishments Eliminate Punishments: Confucians’ Criticism on Legalists’ Utopia Dream

Shang Yang and Han Feizi eloquently articulated the effectiveness of performance-based law and severe punishments (重刑). By evaluating performance against objectives established by law and imposing intolerable suffering for transgressions, they believed, none would dare deceive the lord or violate the law. They asserted that heavy punishments aim to eliminate the need for further punishment, thereby creating a crime-free utopia. 

Han Feizi advocates’ using detail-oriented law to enhance performance: "Adhere to the objectives set forth in a minister's proposal and then hold him accountable for the actual outcomes" 循名而責實. According to Han Feizi, this method enables a ruler to "hold the power over life and death and evaluate the ministers' competence" 操殺生之柄，課群臣之能者. He posited that ministers, driven by inherent self-interest, posed a significant threat to the lord. Although delegating power to these ministers was necessary for administering the empire, Han Feizi advocated the use of performance-based legal statutes as a means for the lord to maintain control over them. By establishing standards and punishing those who failed to meet them, Han Feizi argued, it was more efficient for a ruler to compel officials to act in the ruler's interest, curtail self-serving actions, and prevent deceit by subordinates.

Han Feizi advocated that those who exceeded their proposed accomplishments should also be penalized, as their actions did not perfectly match the objective they proposed. He reasoned that it's not that the lord should be displeased with the greater achievement, but rather, that the harm arising from the discrepancy between the achievement and the stated objectives is more significant than the benefits of the achievement itself. Therefore, the official involved must face penalties

This philosophy sheds light on the Qin-Han legal statutes, which stringently enforced accountability. These statutes ignored the fluctuation of circumstances and human limitations, discarded the consideration of intentions, exhibiting zero tolerance for any discrepancy between established objectives in the law and actual results.

Shang Yang advocated the use of punishments, particularly excessively severe ones, believing that these could shape people's behavior and create a crime-free, and thus, punishment-free utopia.  “Therefore I say that if there are severe penalties that extend to the whole family, people will not dare to try (how far they can go), and as they dare not try, no punishments will be necessary... Hence, the True Monarch … relies on punishments to eradicate punishments.” 

Shang Yang argued that the intentional infliction of suffering on violators of the law was not the primary purpose of punishment. The brutal pain imposed on the body, from mutilation to tattooing, was not meant to "harm the people" but served as an instrumental tool to deter crimes. Han Feizi echoed, “By heavily punishing one villain for his crime, one can put a stop to deviance in the whole country" 重一姦之罪而止境內之邪.”   If minor offenses could be monitored and the brutal punishments imposed on it could be implemented, then people would not have the intention nor courage to challenge the law but would voluntarily follow them. 

In terms of using cost-efficient means to reduce crime by deterring potential offenders, the thoughts of early Chinese Legalists resonate with modern consequentialist theory. The efficiency in reducing crime depends on the fear of hardship created and imposed by the punishment. Consequentialist theory is challenged by criticism that it overlooks the necessity for punishment to be deserved and just. By severing the connection between punishment and considerations of justice, consequentialists risk justifying various unjust punishments whenever these prove to be efficient and economical means of deterrence. Comparable to modern consequentialists, Chinese Legalists leaned more towards a form of brutal utilitarianism. Modern consequentialists recognize that punishment itself is harmful, and the rationale behind the use of punishment is to reduce a greater evil. Therefore, the harm caused by the punishments should be less than the damage the crime causes to society. For Chinese Legalists, the moral significance of punishments and the concept of injustice were barely discussed. Although they never explicitly stated it, punishments effectively provided the government with free laborers and economically benefited the empire building.  Furthermore, modern consequentialists aim to use punishments to reduce the damage that crimes might cause. In contrast, Chinese Legalists aimed their punishments not only at violent evil but also at subpar performance, inflicting suffering on both intentional wrongdoers and those who underperformed due to negligence or lack of ability. The use of punishment was not solely to reduce evil but to ensure high-level performance without mistakes and to create a society free of crimes. This idealization led thinkers to advocate for the use of punishments to an extreme in terms of intensity and frequency. They believed that unbearable pain could create a formidable deterrent that would dictate people's behavior and create an ideal society.

However, by examining both the archeologically excavated legal statutes and cases and the transmitted sources, I demonstrate that when brutal instrumentalism and idealism were applied to real politics, they generated a monstrous legal system that distorted justice. I argue that the Qin-Han legal system excessively punished administrative errors as crimes. Aiming to promote efficiency, performance-oriented legislation prescribed rigid, detailed, and high-standard job objectives for officials. A large number of officials, including those industriously devoted to their jobs, easily violated the law. Excessive punishments made officials guilty of administrative errors suffer the same bodily pain and economic loss as those who caused serious harm to society with intentional violence. When the punishment was neither deserved nor just, resentment arose against the law, and sympathy developed for the condemned. This prominent and unjust problem triggered continuous and heated discussions and criticism among scholars, officials, and sometimes the emperors themselves, but no efficient legal reforms ever occurred. This study aims to provide a historical case to provoke thought about the dangerous application of perfectionism in real world and to explain some historical roots of the Confucian long-standing tradition against the rule by laws.