The political philosophies of Kongzi, Mengzi, and Xunzi can fruitfully be understood as focusing substantially on politically relevant merit – and as having conceptions of politically relevant merit intertwined with their conceptions of morality and virtue. In short, on their account, politically relevant merit finds its necessary foundation in morally relevant merit. In critiquing this position, Han Fei questions four positions that must be true in order for the early Confucian position to succeed: 1) Politically relevant merit is necessarily tied to moral merit; 2) Virtuous individuals who possess the relevant moral merits can reliably be identified even by those who are not themselves virtuous; 3) Moral cultivation is actually possible; and 4) Those qualities that make someone virtuous can reliably be ascertained. This paper examines the worries that Han Fei has with these positions and offers up an account of Han Fei’s own account of politically relevant merit – a non-moral alternative tied to task specific competencies.
Over the past few years, there has been a substantive increase in discussions of “political meritocracy” in general and the ways that ideas in the Chinese philosophical tradition can profitably be thought of as a version of “political meritocracy” in particular.1 For the most part, these discussions of political meritocracy have focused on a variety of Confucian understandings of what constitutes politically relevant merit. And, although there are numerous differences not only among the classical Confucian thinkers Kongzi, Mengzi, and Xunzi, but among the vast and diverse thinkers that have thought of themselves as Confucians over the past two thousand+ years, there are a range of similarities. The goal of Confucian meritocracy in part seems to be to identify how to create or develop virtuous individuals (and, relatedly, how to identify such individuals as actually being virtuous), since virtue seems to be an essential component of politically relevant merit on pretty much any Confucian perspective.
It is here, though, that we can begin to identify a range of potential worries. First, there is the epistemological question of how to create virtuous individuals. Second, there is the epistemological question of how to identify and separate out those who are actually virtuous from those who merely seek the advantage of appearing virtuous. Third, there is the question of whether those things that make a person virtuous are actually related to the political. That is, is politically relevant merit identical with, or a subset of, or, indeed, tied in any fashion, direct or indirect, to moral merit?
There are many ways that the Confucian system of meritocracy could fall apart. It could be the case that the Confucian conception of virtue is wrongheaded, and those character traits that they identify are simply not virtues at all. Or it could be the case that they are appropriately categorized as virtues, but possessing these virtues does not make one a more competent or capable administrator or politician. It could even be the case that the possession of these virtues is actually detrimental to an individual’s capacity to be an effective administrator or politician.
Indeed, it is worries such as these that motivate important aspects of the political writings of Han Fei (ca. 280-233 BCE). Like the vast majority of political texts in the vibrant pre-Qin era of Chinese thought, including the Analects, the Mengzi, the Xunzi, the Mozi, the Daodejing of Laozi, and the Zhuangzi among many others, the eponymous Han Feizi argues for a political meritocracy. However, Han Fei has a dramatically different conception of what constitutes politically relevant merit from his Confucian predecessors. Han Fei argues that part of the problem with political thinkers like Kongzi, Mengzi, and Xunzi is that they have mis-identified what constitutes politically relevant merit. He agrees that political merit matters and that ministers and bureaucrats should be chosen on the basis of their merit. However, he has a vastly different conception of what merit is actually politically relevant.
In what follows, I wish to reconstruct a Han Feizian response to early Confucian conceptions of meritocracy.2 In doing so, I will not only work to demonstrate the force of Han Fei’s negative project but also to show the force of the particular form of political meritocracy that Han Fei himself develops and defends.
Although Han Fei does not describe his negative project in this manner, we can reconstruct what he was doing, in part, at least, as showing the various levels at which we should have serious concerns about the possible success of the Confucian project. At the most fundamental level is the question of whether the Confucian project can even get off the ground. Confucian meritocracy takes virtue to be central to its understanding of merit. This requires the posing of the questions – What is virtue? And, more importantly, upon what basis can we know this? After all, if we do not know what it would mean to be virtuous, or if we have a variety of candidates among which we have no reliable way of choosing, this will have serious implications on whether it will be possible to create virtuous individuals. As we shall see, Han Fei has a range of arguments against possible Confucian responses to this question.
The next step in our reconstruction involves stepping back and conceding, for the sake of argument, that it is actually possible to identify those character traits that would lead to moral merit if successfully cultivated. This, then, would amount to a concession that the Confucian project might be able to get off the ground. However, merely identifying virtues is insufficient for the Confucian project. At this stage, it is necessary to demonstrate that it is actually possible to inculcate these virtues in the people. After all, if few if any can actually become virtuous, then Confucian moral merit may be simply an unachievable ideal. Han Fei takes this worry very seriously and gives a range of reasons why we should be suspicious of any claim of moral cultivation.
But, we might say, let us grant even this to the Confucians. Let us assume for the sake of argument that moral cultivation is possible. Would that be enough for the Confucian political project to succeed? Well, cultivating virtuous individuals may well result in substantial moral merit, but this is only even potentially useful politically if it is possible to identify who actually is virtuous and differentiate the truly virtuous from those who are only feigning virtue for the various materialistic benefits such a pretense may bring. Here, it seems that there are two related questions. First, is it possible for the sages to reliably identify who is truly virtuous? And second, is it possible for those who do not already possess virtue to reliably identify those who have such moral merit? For, unless we assume that those in power necessarily are virtuous, then even if the former question is answered in the affirmative, worries remain if the latter can only be answered in the negative.
Would the Confucian project succeed if Han Fei conceded this epistemological point and accepted that virtuous individuals with substantial moral merit can be identified? Perhaps not, since up to this point we have yet to see an argument for how and why moral merit is actually politically relevant. Any necessary connection between moral merit and political merit needs to be argued for, rather than merely assumed. And Han Fei believes that he can provide a substantial argument for why moral merit is neither necessary for nor even conducive to political merit. Indeed, he will argue that those who act on the basis of moral merit in the political realm have a very realistic chance of drawing their states into chaos and destruction.3 Let us now look at each of these in turn and examine the arguments that Han Fei marshals in his critique of the Confucian political project.
2 What Would It Mean to Be Virtuous?
In order for Confucian meritocracy to be possible, it is first necessary to figure out what path to follow. And the early Confucians did this by appealing to a variety of golden ages in the past – times when the land was under the rule of Sage kings such as Yao and Shun. If they could identify how it was that these sage kings transformed and cultivated the people and ruled their golden ages, then, these Confucians believed, they could recreate these models. However, Han Fei contended that any attempt to use history in this fashion – to attempt to identify either moral merit or political merit and how to achieve it by appeal to the sage kings of the past is doomed to failure. In the opening passage of Chapter 50, Han Fei tells us that both Kongzi and Mozi claimed to be following the ethical ideals of the great sage kings of the past, Yao and Shun. However, Kongzi and Mozi had diametrically opposed ethical visions and as such incompatible views of what constituted moral and political merit. Both of these thinkers, though, Han Fei said, justified their ethical views by appeal to the authority of the sage kings of old.4 This, then, implies that we cannot reliably draw out of the sages of the past any coherent notion of moral (or political) merit, and thus the Confucian conception of virtue, insofar as it relies on an interpretation of the sage kings of the past, lacks any solid foundation or justification.
Now, we might think that, while Kongzi claimed to merely be transmitting the ancient ways rather than innovating his own moral and political theory,5 this was more of a self-deprecating claim, and the justification for his conception of virtue and morality is to be found within Kongzi’s own ideas, as opposed to the ideas of the past sage kings. However, this would not alleviate the problem insofar as, on Han Fei’s account, upon the death of Kongzi, his followers split into eight separate factions and, “[the positions] that each rejected and accepted were divergent and conflicting. Yet each described themselves as ‘true Confucians.’”6
So, again, even if Kongzi had it all figured out and provided sufficient justification for his ethical and political project, even his immediate followers did not fully understand him, resulting in a wide variety of conflicting understandings of the Confucian project.7 And, if we trace the history of Confucianism down through the years, we see that Han Fei’s worry remains. There have been myriad interpretations of the Confucian moral and political project, and, while there are clear overlaps, there are important differences and incompatibilities as well. To this very day, there are a wide number of scholars who, in claiming to be promoting a Confucian political vision, express mutually incompatible stances on the sorts of character traits that would lead to moral merit if successfully cultivated. This is, of course, not to say that they are all wrong. One of them could very well be right. But, as Han Fei argued, the rightness or wrongness of their vision cannot be determined simply by appeals to particular thinkers or texts of the past. It may very well be theoretically possible to create virtuous individuals who would possess the merits relevant to a successful political meritocracy. Han Fei’s point is that, as of his time at least, the Confucians had yet to clearly articulate and defend such a claim, and one might argue that little has changed in the subsequent two thousand years, particularly on the political front.8
3 Inculcating the Virtues
As noted, Han Fei did not provide an argument demonstrating the theoretical impossibility of identifying and grounding important virtues that would be the source of moral merit. He merely questioned whether this had been accomplished. As such, it makes sense to step back and ask what would happen if we were to grant the Confucian claim that there are important virtues that are the source of moral merit and that any individual who cultivates and inculcates these virtues will thereby gain such merit and thus have a role to play in a political meritocracy.
Even if this were true, it would not matter unless people actually can be morally cultivated, and Han Fei was deeply suspicious of this possibility. Part of the reason for Han Fei’s suspicion lies in his conception of human nature as being primarily self-interested. As he said:
Thus, when a carriage-wright makes carriages he wishes for people to be rich and noble while when a craftsman makes coffins, he wishes for people to die young. It is not because the carriage-wright is benevolent while the craftsman is villainous, but rather that if people are not noble, then carriages will not be sold, and if people do not die, then coffins will not be bought. The craftsman’s dispositions are not such that he dislikes people; it is merely that he finds his profit in their death.9
Han Fei’s fundamental point here is that people are neither intrinsically morally good nor morally bad. Rather, human nature is such that people want the things that they see as benefiting themselves. Furthermore, Han Fei is not making the strong claim that we only care about our own interests. Rather, he elsewhere acknowledges, for example, that parents have natural other-regarding feelings toward their children and other close relatives.10 However, our other-regarding feelings are rarely as strong as our self-regarding ones. This is why, as he says,
Furthermore, as for how parents treat their children, when they give birth to a son, they congratulate each other, while when they give birth to a daughter, they kill her. They consider their future benefits and calculate their long-term profit. Therefore, even when it comes to how they treat their children, parents use calculating minds in dealing with them, how much the more so in situations where the [natural] warm feelings between parents and children are absent!11
Female infanticide arises on this account not because parents lack a loving concern for their female offspring. However, when this loving concern is placed in opposition to what the parents see as being in their long-term interests, it loses its motivational force.
Now, this claim in and of itself is not necessarily a problem for the Confucian project. After all, Xunzi is very well known for his claim that human nature is bad, and it can be argued that Xunzi’s position is even more negative than Han Fei’s own.12 Yet, Xunzi thought that people can be cultivated, that they can learn new sources of value that either eliminate or vastly reduce the motivational force of our original self-interested desires.13 The difference between Xunzi and Han Fei lies in their views on the possibility of change. Han Fei ridiculed the idea that moral cultivation could be an effective tool throughout the text, remarking at one point that even Kongzi, who he calls the greatest sage the world has ever known, was only able to attract some seventy followers, and among this group, only Kongzi himself truly possessed benevolence and a sense of rightness.14 If Kongzi was only able to gain seventy followers – none of whom became truly virtuous – then, thought Han Fei, we can clearly conclude that most people’s nature is such that they do not have the necessary potential to become virtuous. The argument Han Fei provides seems to be the following:
Whether an individual can be cultivated morally depends on that individual’s particular nature.
The natures of individuals are predominantly such that they lack even the potential to change their initial motivational set.
The initial motivational sets of individuals are such that they tend to prioritize their own interests over both the interests of other people and over the interests of society as a whole.
Given this, attempts to change individuals’ motivational sets to include a greater concern for others by means of moral cultivation (or indeed by any means) will for the most part be met by failure.
The argument as sketched here is not simply an argument that moral cultivation is a long and arduous process. Rather, Han Fei argued that in the vast majority of cases (indeed, perhaps in all cases), moral cultivation simply cannot succeed. Most individuals lack the capacity to change their innate natures or expand their initial motivational sets in any fundamental way. Therefore, Han Fei argued, attempting to rely upon the moral merit that arises from moral cultivation in the political realm is an invitation to disaster.
Of course, Confucians could argue against Han Fei in at least three ways. They could argue against premise 2); they could argue against premise 3); or they could argue that even though very few people have the capacity to change their innate natures, that is all that is needed.15 So long as we can identify those rare individuals who have the capacity to be cultivated, and do so cultivate them, they will be able to develop the merit that the Confucians so prize.
At this stage, even though Han Fei does have responses to these potential moves, we can envision him stepping back yet again and granting even this premise to Confucians. Unfortunately for Confucians, however, Han Fei can argue that even this is insufficient for their project to succeed. Even if we accept, arguendo, that moral cultivation is possible, that some people will change their interest sets, develop new sources of value and become virtuous, this is only of value politically if it is possible to reliably identify those who have actually attained virtue. Without the capacity to identify the truly virtuous and differentiate them from those who are merely feigning virtue, the Confucian project cannot succeed.
4 Identifying Those with Moral Merit
At this point, we return to an epistemological worry – or, rather, two related, yet importantly distinct worries. First, is it possible for those who are virtuous to reliably identify others who are truly virtuous? Second, is it possible for those who do not already possess virtue to reliably identify those who have this moral merit? The second question is arguably of greater importance for, unless we assume that those in power necessarily are virtuous, then even if the former question is answered in the affirmative, worries remain if the latter can only be answered in the negative.
One of the important aspects of the Confucian moral program is that it makes a distinction between acting in accordance with virtue and acting from virtue. If someone is a virtuous individual, they act in the way that they act because they have internalized an understanding of why what they are doing is the right thing to do, do the right thing because it is the right thing, and want to act in this fashion. However, there is a worry that there may be a range of individuals who claim to be virtuous, and even whose actions appear from the outside to be virtuous, but who are not truly virtuous. They may merely feign virtue because doing so allows them to obtain other goods that they desire and thus allows them to more fully satisfy their pre-existing interest sets. If this is the case, then, there is a worry that a Confucian merit-based political system would place into positions of authority those who are merely feigning possession of these moral merits. And, once in positions of power, they may manipulate these positions for their own self-interested goals, with disastrous results to the strength, stability, and flourishing of the state and its people.
Confucians may argue that someone who actually is virtuous would be able to identify those who merely feign virtue. If this is one of the powers of those who are fully cultivated, then, if there was a virtuous ruler in place, or virtuous ministers in place, they might reliably be able to identify and distinguish between those who are truly virtuous and those who merely feign virtue. How satisfactory such a response is, depends on at least two things. First, can Confucians present a sound argument for such a claim, given that the skill of acting virtuously may very well be different from the skill of reliably identifying virtue in others? Second, this system relies upon already having virtuous people in positions of political power – but how are we to know if these people in power are actually virtuous rather than themselves feigning virtue? How do we avoid an infinite regress?
Perhaps this worry can be overcome, but we must still acknowledge that there will be many situations in which the rulers or others in power are not themselves virtuous but have been convinced by Confucians to identify and promote those who are actually virtuous. Indeed, we can see the lives of Kongzi, Mengzi, and Xunzi as consisting in large part of attempts to convince rulers who were not virtuous to cultivate themselves and promote those with Confucian virtues. So, in the eyes of these Confucians, those in power were not actually virtuous.
This is problematic because, even if we acknowledge that those who are virtuous can identify others who are virtuous, it certainly does not follow that those who lack virtue can identify those who possess it. Even supposing we escape the earlier worry about figuring out exactly what virtue is, it seems quite Pollyanna-ish to assume that a non-virtuous ruler – including those who the Confucians were themselves engaging with – could discern who is actually virtuous and who is merely feigning virtue.
At this point, we may endeavor to appeal to the Mengzi for some assistance. In 7A30, we see a passage that seemingly refers to the question of acting virtuously:
Mengzi said, ‘Yao and Shun always treated it as their nature. Tang and Wu made themselves into it. The Five Hegemons feigned it. But if one feigns it for a long time without turning back, how can anyone know that they do not have it?’16
One might take this to imply that if one pretends to have virtue for long enough, one will actually become virtuous. And, indeed, insofar as the Confucian picture is that part of what becoming virtuous involves is habituating oneself to act in a particular way, this might well happen. Regardless of why an individual starts to act as if they are virtuous, if they do so long enough, moral cultivation may result. And we may very well think that the length of time one would have to pretend in order to gain the sort of political position that one initially hopes to exploit would be sufficiently long for the habituation process to actually lead to virtue.
This may be more an empirical question than anything else. However, it is worth noting that there is another way of interpreting Mengzi’s claim that “if one feigns it for a long time without turning back, how can anyone know that they do not have it?” No less a Confucian scholar than Zhu Xi (1130-1200) suggested that Mengzi’s point here is that those who become well-practiced at feigning virtue may successfully deceive almost everyone about whether they actually are virtuous.
Furthermore, the Han Feizi is rife with stories of rulers whose goal was to appoint virtuous ministers and who were duped by those using flowery words and engaging in actions that led the rulers to believe that these individuals were actually virtuous. The result, of course, was the appointment to positions of great power people who would exploit those positions to their own ends, often with disastrous effects not only for the ruler who employed them but to the state itself. Chapter 44 in particular relates numerous stories in this vein, including that of the ruler Zikuai, who was duped by his power-hungry minister, Zizhi, into abdicating the throne to Zizhi because of his supposed moral merit. The result was the death of both Zikuai and Zizhi and the destruction of the state of Yan.17
Now of course we may say that the problem is not with any conception of Confucian meritocracy but rather with people pretending to employ it. But the point is that if there is no reliable mechanism for determining what is going on, who is virtuous and who is not, then even if circumstances actually would be better if virtuous Confucians were in positions of political power, insofar as it is impossible to reliably identify such individuals, any system that tries to do so merely succeeds in endangering itself.
But what if Han Fei were to concede even this epistemological point and accept that virtuous individuals reliably can be identified? Would this yield enough ground to accept the viability of the Confucian project? Well, perhaps not, as we shall see.
5 Moral Merit vs. Political Merit
Even if it is possible to identify those qualities that are meritorious in the moral realm, even if it is possible to inculcate them reliably into (at least some) individuals, even if we could reliably identify those who actually have this moral merit, we would still need an argument for why we should think that there is a connection between moral merit and political merit. And part of any such argument would need to respond to Han Fei’s own contention that not only is morality (and thus moral merit) not necessarily conducive to achieving a strong, stable, and flourishing social and political order, it may actually be detrimental for this aim.18 Moral merit is not a panacea for political ills, thought Han Fei; indeed, it may actually be the poison that kills the patient.
Investigating this, we can begin with one version of the Confucian position on political order as seen in the Xunzi:
The gentleman puts in good order what is orderly. He does not put in good order what is chaotic. What does this mean? I say: Ritual and yi [appropriate social norms] are called orderly. What is not ritual and yi is called chaotic. So, the gentleman is one who puts in good order the practice of ritual and yi. He does not put in good order what is not ritual and yi. That being so, if the state is in chaos will the gentleman not put it in good order? I say: Putting a chaotic state in good order does not mean making use of the chaos to put it in order. One gets rid of the chaos and replaces it with order. Bringing cultivation to a corrupt person does not mean making use of his corruption in order to cultivate him. One gets rid of the corruption and supplants it with cultivation. So, the gentleman gets rid of chaos and does not put chaos in good order. He gets rid of corruption and does not cultivate corruption. The proper use of the term ‘put in good order’ is as when one says that the gentleman ‘does what is orderly and does not do what is chaotic, does what is cultivated and does not do what is corrupt.’19
In this passage, it is clear that Xunzi takes order to refer to a “moral order” that is based upon thickly normative notions of appropriate rituals and social norms. On his account, any viable political order must rest upon this underlying moral order.20 If this is correct, then not only is moral order compatible with political order, it is actually the source of this political order. Nothing inimical to moral order could lead to political order. Han Fei, however, was quite suspicious of such a claim. As he said:
Therefore, what preserves the state is not benevolence or righteousness [yi]. Those who are benevolent are loving and kind and take wealth lightly. Those who are cruel have hearts that are harsh and easily punish. If one is loving and kind, then one cannot bear to do certain things. If one takes wealth lightly, then one is fond of giving to others. If one is harsh, then a hate-filled heart will manifest itself toward subordinates. If one easily punishes, then rash executions will be applied to the people. If there are things that one cannot bear to do, then punishments will often be forgiven and waived. If one is fond of giving to others, then rewards in many cases will lack a corresponding achievement. If a hate-filled heart manifests itself, then those below will resent their superiors. If rash executions are instituted, then the people will rebel. So, when a benevolent individual is in power, those below will be unrestrained and think little of violating prohibitions and laws. They will look to luck and be lazy, and will hope for good things from their superior. When a cruel individual is in power, then laws and orders will be rashly applied, and the relationship between ministers and their ruler will be one of opposition. The people will be resentful and hearts bent on disorder will arise. Therefore, it is said: Both those who are benevolent and those who are cruel will ruin the state.21
This is a clear attack on using the Confucian virtues of kindness, benevolence, and righteousness as criteria for political action. A benevolent ruler who cannot bear to do certain things22 will tend to waive punishments even for those whose actions merit it and provide rewards to those whose actions do not merit it. The result, Han Fei thought (particularly given his conception of human nature), is that the people will no longer have incentive to work hard for the things that they desire. Rather, they will simply begin to rely upon the munificence and generosity of their kind and benevolent ruler. And if even a small minority act based on this incentive, the knock-on effects will be quite deleterious for the broader social and political order.
Han Fei’s fundamental worry is that moral normativity is non-identical to political normativity. That is, those things that make something morally good or bad are not necessarily the same as those things that make something politically good or bad. Further, not only are the two not identical, the latter simply cannot be derived from the former. So, even if we acknowledge that the Confucians have accurately identified moral goodness and badness,23 it does not follow that they have identified political goodness and badness. Indeed, insofar as they believe that the former can be used to define or even delimit the latter, we have every reason to discount such a claim. Politics is not a form of applied ethics, and again the Han Feizi is rife with stories of rulers who demonstrated exactly the sort of moral merit that the Confucians prized ending up destroyed or dead precisely because of this.
Indeed, Han Fei would agree with the claim that “whatever it is, the kind of normativity that constitutes political justified-ness is not equivalent to or even ultimately derived from, moral normativity.”24 The fundamental difference between the Confucians and Han Fei on this point is over whether the problems facing society, whatever they happen to be, are at their base, moral problems. Confucians respond in the affirmative. For Han Fei, however, there is nothing necessarily moral about social problems, and the task of achieving a strong, prosperous state is, fundamentally, an amoral engineering problem. Insofar as Confucianism requires moral virtue as a core component of political merit, it not only misidentifies what constitutes politically relevant merit, it also focuses on and characterizes as meritorious characteristics and traits that may at times actually be detrimental to a well-ordered and flourishing state. What Han Fei proposes to do, then, is to identify a set of uniquely political merits that will not necessarily correlate with any moral merits.25 It is to this that we now turn.
6 Han Fei’s Positive Program
Western scholars of Chinese thought have variously discussed Han Fei as a “theorist of secular bureaucracy,”26 as developing a “behavioral science,”27 or an “amoral science of statecraft,”28 and as developing a version of political realism that might profitably be compared with the ideas of Machiavelli and Kautilya.29 Indeed, Benjamin Schwartz goes so far as to claim that Han Fei is “closer in spirit to certain nineteenth- and twentieth-century social scientific ‘model builders.’”30 And, indeed, we may think that one of the reasons the great Chinese historian Sima Tan (c. 165 BCE-110 BCE) grouped Han Fei into the category of fajia (often translated as “Legalism”) was that the thinkers he so characterized shared a particular approach: they all began their investigations into society and politics from what people were actually like – the interests and motivations that they actually had – as opposed to some ideal version of what they could be like or what we might wish them to be like, and worked to develop systems by which political order could be achieved, leading to a strong, stable, and prosperous state.31
Given his understanding of human nature, Han Fei was interested in developing a political system that worked with the inclinations, desires, and nature of the vast majority of people. As he makes clear, the goal is not to rely upon people doing good but to ensure that they do no wrong, “using what works for the majority and eliminating what works only for a minority.”32 Once we understand actual human motivations, controlling and driving the vast majority of people in such a way as to ensure the strength, stability, and flourishing of the state becomes merely a technical engineering problem with no necessary connection to morality. Thus, thought Han Fei, it is possible to develop a mechanistic system – a political leviathan that, once implemented, will run smoothly and effectively, needing, at most, a bit of oiling from time to time.
What, though, would this system look like? Well, it would be a heavily bureaucratized state with an inviolable code of law that ensured that those things that strengthen and stabilize the state are implemented.33 Prime among these for our purposes is the identification of those who have politically relevant merits and the slotting of them into the appropriate position within this bureaucratic system. According to Han Fei:
As for technique, it is the awarding of offices on the basis of ability, the abiding by job descriptions and requiring performance, the holding on to the handles of life and death, and the examining of who among the assembled ministers are capable. These are what the ruler holds on to.34
This passage makes it clear that Han Fei was interested in finding people of merit to fill political and bureaucratic positions, but it does not yet tell us how he understood this merit – how are we to determine who is meritorious and what actually constitutes political merit? In beginning, to lay out his understanding, Han Fei attacked another political vision that did not rely upon morality, that of Shang Yang:
The laws of Lord Shang said: ‘One who has chopped off one head in battle shall be raised one level in rank, and if this person desires to take office, it will be to a position with a salary of 50 dan.35 One who has chopped off two heads in battle shall be raised two levels in rank, and if this person desires to take office, it will be to a position with a salary of 100 dan.’ Position and rank corresponded to achievements in beheading.
Now, if there were a law that said: ‘Those who chop off heads are ordered to become doctors and carpenters,’ then houses would not be completed and illnesses would not be cured. Carpenters have skilled hands while doctors prepare doses of medicine, and if one takes success at beheading as the standard for handing out these positions, then this does not correspond with abilities. Now, performing the functions of office depends upon knowledge and ability. Beheading people depends upon the use of bravery and strength. Utilizing those who use bravery and strength and having them perform the functions of offices that require knowledge and ability is the same as making those who are good at beheading doctors or carpenters.36
The point is clear – in awarding offices, the only thing that matters is how talented an individual is at completing the specific tasks of that office. War heroes may have the talents necessary to take governmental posts, but there is no more guarantee of this than there is that the war heroes will have the talents necessary to become doctors or carpenters. Therefore, in deciding how to fill governmental posts, look only at relevant criteria, and do not be swayed by criteria (like morality) irrelevant to the post.
A minister of public works needs to have an understanding of, for example, the ways in which dikes, dams, and drainage ditches can eradicate flooding, while an economic minister needs to have an understanding of the ways in which various trade and tax policies will affect the state. This sort of knowledge and ability is specific to the task at hand. It is not something that is provided by virtue or any other moral quality. Indeed, not only is there no such thing as politically relevant moral merit on Han Fei’s account, there is no such thing as a generalized “political merit.” Rather merit is task specific and a fundamental aspect of governing is identifying who is competent to do what specific tasks and ensure that they are given control over those tasks. As Han Fei says,
Therefore, in the administration of an enlightened ruler, the prime minister always rises up from the position of district magistrate, the powerful generals always emerge from the ranks of soldiers. Because individuals with merit are always rewarded, their titles and stipends soon become substantial and they are inspired to work even harder. As these individuals move from office to office and are promoted to higher and higher levels in the government, their offices and assignments become more significant and the government becomes even more well-ordered.37
The point here is not that promotion through the ranks is an expectation for all. Rather, it is that individuals start at the bottom, where tasks are simpler and of less import, and then, by demonstrating that they have particular task-relevant skills and abilities, are promoted to positions where they can make full use of these skills. However, they will rise no higher in the bureaucratic, military, or political system than their relevant skills and talents allow.
Since Han Fei’s system cannot rely upon people working for the system because they have internalized the goals of this system, even if individuals with the appropriate skills and talents are placed in positions where these skills and talents can maximally be made use of, there is no reason to think that the people in these positions will actually appropriately utilize the skills that they have. As he says:
The ruler’s interest lies in having those of ability service in office. The minister’s interest lies in obtaining a position without ability. The ruler’s interest lies in rank and emoluments going to those who toil. The minister’s interest lies in forming factions for self-interested ends.38
Just because an excellent widget maker has been identified does not mean that if they are placed in a widget factory, they will work hard at making widgets. They may very well prefer to spend their time watching fluffy cat videos on YouTube. What is necessary is that those with these skills be provided with an overriding incentive to exercise them. It is here that Han Fei introduces the concept of xingming, of matching claims and achievements. As he says,
Those who have suggestions naturally make claims; those who engage in tasks naturally have achievements. When achievements and claims are inspected and compared, the lord will have nothing else to do, and will treat this as [a case of] things being the way they really are.39
What Han Fei seems to be trying to hone in on here is a self-regulating system that will ensure that those in particular positions fulfil the duties of that system – that is, exercise the merit that they have demonstrated that they have in the appropriate fashion. To do this, Han Fei envisioned a system in which the ruler listens to the proposals of his ministers, to what they claim they are capable of doing. Then, he ensures that their subsequent achievements actually meet their earlier claims. This is a central tool for controlling governmental officials and works both ways. As he tells us,
If the ruler desires to get rid of treachery, then he examines the correspondence between achievements and claims and whether what was said differs from what was done. Those who act as ministers lay out proposals and the ruler on the basis of their words assigns them tasks. And it is exclusively by means of the achievement of their tasks that they are held accountable. If achievements accord with their tasks and tasks accord with proposals, then they are rewarded. If achievements do not accord with tasks or tasks do not accord with proposals, then they are punished.
Therefore, if among the assembled ministers there is one whose proposals are grand while his achievements are small, then he will be punished. It is not because his achievements are small that he is punished, but rather he is punished because his achievements did not match his proposal. If among the assembled ministers there is one whose proposals are small while his achievements are grand, he will also be punished. It is not the case that the ruler is not pleased by these grand achievements, but rather because he takes the harm of achievements not matching proposals to outweigh the good of great achievements, and thus he punishes.40
Initially, this may seem strange. That is, from our contemporary perspective, it may well make sense to punish those who make grandiose claims, and yet fall far short in implementation. However, we tend to think that those who overachieve should, if anything, be given even greater rewards. From Han Fei’s perspective, though, the harm to the overall system of allowing such a mismatch will outweigh any benefits that might be gained in a particular instance. Indeed, his argument here bears similarities to those used to defend rule consequentialism over act consequentialism.
Further, Han Fei does not seem just to have in mind the harm this could have on the overall system. Rather, there is another fundamental worry, that of unintended consequences.41 As the saying goes, “The road to hell is paved with good intentions.” On Han Fei’s account, those in particular public positions are in those positions because they have demonstrated that they have a particular aptitude and skill – the requisite merit to engage in the task they have been assigned. If, however, they go beyond their remit, there is a danger that, even if their intentions are good – even if their goal is to produce more benefit for the state than would otherwise be achievable, their actions may have significant unintended negative side effects. Why think that this may be the case? Well, by going beyond their remit, there is the danger of acting in areas outside of those where they have demonstrable capabilities and skills. While it may be impossible to eliminate unintended consequences, it is certainly not unreasonable to think that they will be reduced if people do not make decisions that have impact in areas over which they have no actual talent and expertise. And of course, as we saw above, Han Fei has already detailed the ways that moral sensibilities and feelings of loving kindness can lead to political disaster.42
It might be worried that while such a system provides incentives not to promise more than one is confident that one can deliver. However, it might be worried that it would lead ministers to refrain from promising anything at all. After all, if one promises nothing, then one cannot be blamed for delivering nothing. There is a response to this, though. The economic minister who does not advocate economic policies or the public works minister who does not develop any public works projects is no more doing their job than the street sweeper who does not sweep the street. On Han Fei’s account, these instances would be identified as not fulfilling one’s position just as much as over or under promising would be.
This has simply been a brief sketch of Han Fei’s negative and positive political projects. There is much more that cannot be examined in sufficient detail here. The hope is merely that his vision of political meritocracy has been laid out in sufficient detail that it stands as both a challenge and a plausible alternative to the Confucian vision. Furthermore, this paper does not purport to demonstrate conclusively that the Confucian project of a morality-based political meritocracy cannot succeed. It may very well be possible for Confucians to respond to Han Fei’s various concerns and criticisms. However, in order for them to do so, they need to provide convincing arguments in support of at least the following claims, considering the arguments that Han Fei marshals against them:
Politically relevant merit is necessarily tied to moral merit.
Virtuous individuals who possess the relevant moral merits can reliably be identified even by those who are not themselves virtuous.
Moral cultivation is actually possible.
Those qualities that make someone virtuous can reliably be ascertained.
Additionally, while this paper has been primarily historical, focusing on the concerns that one particular early Chinese political philosopher had with the moral meritocratic vision of politics as espoused in the Analects, Mengzi, and Xunzi, its implications may not merely be at the historical level. Rather, within the context of contemporary theorists envisioning the creation of a Confucian political meritocracy, I offer Han Fei’s project up as providing a set of hurdles that must be responded to if we are to accept the plausibility of the Confucian meritocratic project. Whether they are able to do so effectively remains to be seen.43
Eirik Lang Harris works in the fields of political philosophy, ethics, and philosophy of law, with a focus on the early Chinese tradition, especially Confucian and Legalist views. His latest book was The Shenzi Fragments: A Philosophical Analysis and Translation (Columbia University Press, 2016).
Discussions of political meritocracy in the contemporary Chinese context include Daniel A. Bell and Chenyang Li, eds., The East Asian Challenge for Democracy: Political Meritocracy in Comparative Perspective (Cambridge: Cambridge University Press, 2013); Daniel A. Bell, The China Model: Political Meritocracy and the Limits of Democracy (Princeton: Princeton University Press, 2015); Tongdong Bai, Against Political Equality (Princeton: Princeton University Press, 2020). Work looking at political meritocracy in a historical context include Benjamin A. Elman, Civil Examinations and Meritocracy in Late Imperial China (Cambridge: Harvard University Press, 2013); Pei Wang, “Debates on Political Meritocracy in China: A Historical Perspective,” Philosophy and Public Issues (New Series) 7, no. 1 (2017): 53-71; Pablo Blitstein, “Meritocracy, Aristocracy, and “Literati Democracy” in Chinese Imperial History,” in The Oxford Handbook of Comparative Political Theory, ed. Leigh K. Jenco et al. (Oxford: Oxford University Press, 2020), 580-97.
Throughout, I use the term “Confucian” to refer to the related philosophies of Kongzi, Mengzi, and Xunzi, as it is the ideas of these thinkers that Han Fei attacks. However, while I will not develop the arguments here, many later versions of Confucianism, including contemporary ones, are susceptible to these criticisms, insofar as they rely on fundamental principles of these early Confucian thinkers.
See, for example, Han Feizi Chapter 44, as discussed below.
See, in particular, Han Feizi Chapter 50.
In the Analects 7.1, Kongzi says, “I transmit rather than innovate. I trust in and love the ancient ways.” Edward Slingerland, trans., Confucius Analects: With Selections From Traditional Commentaries (Indianapolis: Hackett Publishing, 2003).
All translations from the Han Feizi are all my own. However, for reference, I provide citations to the only complete English translation of this text, Wên-kuei Liao, trans. The Complete Works of Han Fei Tzu: A Classic of Chinese Legalism, 2 vols. (London: A. Probsthain, 1939/1959). Given the problematic nature of this early translation, when possible I cite the much more accurate, albeit partial, translations of Joel Sahleen and Burton Watson. See Burton Watson, trans., Han Feizi: Basic Writings, (New York: Columbia University Press, 2003); Joel Sahleen, trans., “Han Feizi,” in Readings in Classical Chinese Philosophy, ed. Philip J. Ivanhoe and Bryan W. Van Norden, (Indianapolis: Hackett Publishing, 2005), 311-61.
And, from a contemporary perspective, our understanding of Kongzi’s philosophical views come primarily from the Analects, a text that is quite piecemeal and certainly does not provide a comprehensive theoretical underpinning for his ethical or political views.
As we shall see, accepting that the Confucians developed important insights in areas such as ethics and moral psychology, or even accepting that they have full blown theories in these areas, indeed even accepting that these theories are correct, is insufficient to accept the claim that their views on political merit hold water.
Liao, Complete Works: Vol. 1, 147; Watson, Han Feizi, 87.
See, for example, discussions in the Han Feizi Chapters 20, 46, and 47.
Liao, Complete Works: Vol. 2, 239.
See, for example, the opening lines of Xunzi’s chapter on human nature, Eric L. Hutton, trans. Xunzi: The Complete Text, (Princeton: Princeton University Press, 2014), 248.
For an excellent collection of essays examining a broad array of topics in the Xunzi, see T.C. Kline, III and Philip J. Ivanhoe, eds., Virtue, Nature, and Moral Agency in the Xunzi, (Indianapolis: Hackett Publishing, 2000); T.C. Kline, III and Justin Tiwald, eds., Ritual and Religion in the Xunzi, (Albany: SUNY Press, 2014); Eric L. Hutton, ed., Dao Companion to the Philosophy of Xunzi, (New York: Springer, 2016).
Liao, Complete Works: Vol. 2, 281-82; Watson Han Feizi, 103; Sahleen, “Han Feizi,” 341-42.
We can see the disagreements among Mengzi, Xunzi, Gaozi, and others in the early Chinese literature as in part disagreements over these two premises.
Bryan W. Van Norden, trans., Mengzi: With Selections From Traditional Commentaries (Indianapolis: Hackett Publishing, 2008), 179.
For an excellent analysis of this example, see Eric L. Hutton, “Han Feizi’s Criticism of Confucianism and Its Implications for Virtue Ethics,” Journal of Moral Philosophy 5, (2008): 423-53.
For more on this, see Eirik Lang Harris, “Han Fei on the Problem of Morality,” in Dao Companion to the Philosophy of Han Fei, ed. Paul R. Goldin, (New York: Springer, 2013).
Hutton, Xunzi, 19.
For more detail on this argument, as well as an analysis of Xunzi’s broader political philosophy, see Eirik Lang Harris, “Xunzi’s Political Philosophy,” in The Dao Companion to Xunzi, ed. Eric L. Hutton, (New York: Springer, 2016).
Liao, Complete Works: Vol. 2, 254-55.
This is a fairly clear reference to the Mengzi. See, in particular, 1A7, 2A6, and 7B31.
Of course, given our earlier discussion of the fact that there is disagreement among the various Confucians throughout history over what constitutes moral goodness, we’d still need to figure out which version to defend.
Nicholas Southwood, “Political Versus Moral Justification,” The Southern Journal of Philosophy 41, no. 2 (2003), 261.
It is not Han Fei’s claim that moral merit and political merit are necessarily in conflict. It may very well be the case that they sometimes, perhaps even often, provide similar advice. The point is merely that their advice will diverge at times, and that acting on moral merit can lead to politically disastrous consequences in such instances.
J.G.A. Pocock, “Ritual, Language, Power: An Essay on the Apparent Political Meanings of Ancient Chinese Philosophy,” Political Science 16, no. 1 (March 1964), 99.
Benjamin I. Schwartz, The World of Thought in Ancient China (Cambridge: Harvard University Press, 1985), 321.
A.C. Graham, Disputers of the Tao: Philosophical Argument in Ancient China (La Salle: Open Court, 1989), 267.
Roger Boesche, The First Great Political Realist: Kautilya and His Arthashastra (Lanham: Lexington Books, 2002). While Machiavelli is quite well known, Kautilya and the book attributed to him, the Arthasastra (c. 2nd-3rd century BCE), is less well known. For a translation of this realist text that deals with statecraft, economics, and military strategy, see Patrick Olivelle, King, Governance, and Law in Ancient India: Kautilya’s Arthasastra (Oxford: Oxford University Press, 2013).
Schwartz, The World of Thought, 348.
Those often labeled as “Legalist” include Shen Dao, Shen Buhai, Shang Yang, and Han Fei. For a discussion of the term “Legalism” and its appropriateness as a descriptor of this group, see Eirik Lang Harris, “Legalism: Introducing a Concept and Analyzing Aspects of Han Fei’s Political Philosophy,” Philosophy Compass 9, no. 3 (March 2014): 155-164. For more on Han Fei and “Legalism” see Henrique Schneider, An Introduction to Hanfei’s Political Philosophy (Cambridge: Cambridge Scholars Publishing, 2018), 1-26.
Liao, Complete Works: Vol. 2, 306; Watson, Han Feizi, 126; Sahleen, “Han Feizi,” 357.
For a more thorough introduction to Han Fei’s understanding of the role of the law, see Eirik Lang Harris, “Is the Law in the Way? On the Source of Han Fei’s Laws,” Journal of Chinese Philosophy 38, no. 1 (March 2011): 73-87.
Liao, Complete Works: Vol. 2, 212; Sahleen, “Han Feizi,” 336.
A dan was a traditional unit of volume, especially for grain, by which official salary was often paid.
Liao, Complete Works: Vol. 2, 215-16; Sahleen, “Han Feizi,” 339.
Liao, Complete Works: Vol. 2, 304; Watson, Han Feizi, 125; Sahleen, “Han Feizi,” 356.
Liao, Complete Works: Vol. 1, 104.
Ibid., 31; Watson, Han Feizi, 15; Sahleen, “Han Feizi,” 314. My translation of the term xing as ‘achievement’ and ming as ‘claim’ accords with the arguments put forth by John Makeham. See John Makeham, Name and Actuality in Early Chinese Thought (Albany: SUNY Press, 1994), 67-83. For an alternative understanding of these terms, that takes xing to mean performance and ming to mean title, see Herrlee G. Creel, “The Meaning of 刑名 Hsing-Ming,” in What is Taoism? And Other Studies in Chinese Cultural History, (Chicago: University of Chicago Press, 1970).
Liao, Complete Works: Vol. 1, 48-49; Watson, Han Feizi, 31; Sahleen, “Han Feizi,” 324-325.
This term was popularized by the sociologist Robert K Merton. See, in particular, Robert K. Merton, “The Unanticipated Consequences of Purposive Social Action,” American Sociological Review 1, no. 6 (1936): 894.
In addition, Han Fei is worried about the fact that any mismatch between what ministers say they will do, and what they proceed to do after receiving approval to do that thing is an infringement upon the ruler’s power to decide what happens within the state. All the minister has been given leave to do is what they claim they would accomplish. Doing anything else is taking power away from the ruler in placing it in the minister’s own hands, with potentially disastrous consequences, as Han Fei details elsewhere.
Previous versions of this paper have benefitted from comments from and conversations with Thai Dang, Andrej Fech, Eric L. Hutton, and Philip J. Ivanhoe. In addition, I wish to thank the anonymous reviewer who provided insightful feedback that allowed me to both clarify and strengthen my argument.