Shen Buhai

Part of a series on
Chinese legalism
Figures Guan Zhong Marquess Wen of Wei Li Kui Duke Xiao of Qin Shang Yang Shen Buhai Wu Qi Shen Dao Zhang Yi Han Fei Li Si Qin Shi Huang
Han figures Jia Yi Emperor Wen of Han Emperor Wu of Han Chao Cuo Gongsun Hong Zhang Tang Huan Tan Wang Fu Zhuge Liang
Later figures Emperor Wen of Sui Du You Wang Anshi Li Shanchang Zhang Juzheng Xu Guangqi
Relevant texts Guanzi The Book of Lord Shang Shenzi (both books) Han Feizi Wuzi Wei Liaozi Annals of Lü Buwei Huang-Lao
Relevant articles Rectification of names Wu wei Discourses on Salt and Iron Criticize Lin, Criticize Confucius
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Shen Buhai (Chinese: 申不害; c. 400 BC – c. 337 BC)^[1] was a Chinese essayist, philosopher, and politician. The Shiji records that he served as Chancellor of the Han state under Marquis Zhao of Han for fifteen years, from 351 BC or 354 to his supposed death in 337 BC. He died of natural causes while in office.^[2] A contemporary of syncretist Shi Jiao and "Legalist" Shang Yang, he was born in the State of Zheng, and was likely a minor official there. After Han conquered Zheng in 375 BC, he rose up in the ranks of the Han officialdom, dividing up its territories and successfully reforming it.

Though the origins of the Chinese administrative system cannot be traced to any one person, prime minister Shen Buhai may have had more influence than any other in the construction of the merit system, and might be considered its founder, if not valuable as a rare pre-modern example of abstract theory of administration. Sinologist Herrlee G. Creel saw in Shen Buhai the "seeds of the civil service examination," and perhaps even the first political scientist.^[3][4]: 94

Though more conciliatory, Shen Buhai's fragments most resemble the much later Han Feizi, which recalls him and Shang Yang. Both works concerning "methods" (fa) of administration. But Shen Buhai was not necessarily familiar with Shang Yang's doctrine of reward and punishment in his own time. A work as late as the fifth century still recalls him as having opposed punishment. With a mutual concern for fa methods of administration, relevant for penal records and practice by the Han, and often recalled together with Shang Yang by the Han dynasty, he was likely incorporated into the Fa or "Legalist" school through the Han Feizi's syncretic association.

Although Sinologists Benjamin Schwartz and Hansen would take Shen Dao as a more relevant Daoist forebear, Creel believed that Shen Buhai's correlation between an inactive (Wu-wei) ruler, and a handling of claims and titles may have informed the Daoist conception of the formless Dao (name that cannot be named) that "gives rise to the ten thousand things." He is credited with the dictum: The Sage ruler relies on measures and not on wisdom; he relies on technique, not on persuasions.^[5]

Only the questionable death date of Shen Buhai in 337 B.C. is correlated between multiple sources. He was supposed by Ch'ien Mu to have lived sixty or seventy years. The birth date of 400 B.C. is a compromise between 397 and 407 that was believed to be "safe" by German Sinologist Alfred Forke. Professor Tao Jiang still used it modernly in his 2021 dissertation, "Origins of moral-political philosophy in early China." Sometimes the birth date is simply left out.

Although Shen Buhai is recorded in Sima Qian's Historical Records as becoming Chancellor in Marquis Chao's eight year, traditionally 351, Creel suggests it more probable to date both Shen Buhai's appointment and the Marquis eighth year earlier, in 354, after the state of Wei sieged the state of Chao. As an earlier source, the Stratagems of the Warring States state that Shen Buhai had just found favor with the Marquis at the time of that event.^[6]

Shen was known for his cryptic writing style. Because the writings attributed to him appear to be pre-Han dynasty, he is credited with writing a now extinct two chapter text, the Shenzi (申子), which is concerned almost exclusively with the philosophy of governmental administration. In 141 BC, under the influence of Confucians, the reign of Emperor Wu of Han saw Shen Buhai's name listed along with other thinkers classed as "Legalist" (Fajia, with Legalist more accurate for Shang Yang), officially banning their ideas from the government; from that point on, scholarship relating to Shen's ideas went into a steep decline, despite continued use of his foundational ideas in administration, much of which, consisting of skill and report checking, would be unavoidable).

Widely read in Han times, in comparison to the still-complete Han Feizi the Shenzi was listed as lost by the Liang dynasty (502–556). Appearing again in the bibliographies of both Tang histories, its only traces remain as quotes in surviving texts in Qunshu Zhiyao, compiled in 631, and Yilin, compiled around 786. During the Qing Dynasty, three major attempts were made to reconstruct the contents of the work, the last mention occurring in 1616, and in a library catalogue from 1700.^[7] Its fragments were re-assembled by Sinologist Herrlee G. Creel (1974) in Shen Pu-Hai: A Chinese Political Philosopher of the Fourth Century B. C., which were still used more modernly by Korean scholar Soon-Ja Yang in her review of Shen Buhai.^[8]

Though not unifying the laws of the early Hann state, as Shang Yang did in the Qin, what Shen "appears to have realized" is that the "methods for the control of a bureaucracy" could not be mixed with feudal government, or staffed merely by "getting together a group of 'good men,'" but rather must be men qualified in their jobs. Unlike Shang Yang, Shen therefore emphasizes the importance of selecting able officials as much as Confucius did, but insists on "constant vigilance over their performance," never mentioning virtue.

Shen insisted that the ruler must be fully informed on the state of his realm, but couldn't afford to get caught up in details – and does not, Creel says, have the time to do so, eschewing personal appointments. The way to see and hear independently is by grouping particulars into categories through mechanical or operational decision-making (Fa or "method").

However, in comparison with the later, more mechanically developed Han Fei, his system still required a strong ruler, emphasizing that he trust no one minister. Shen's ruler had the widest possible sovereignty, was intelligent (if not a sage), had to make all crucial decisions himself, and had unlimited control of the bureaucracy - over which, in contrast to Shang Yang, he is simply the head. Championing Fa (法 "method"), Shen believed that the greatest threat to a ruler's power came from within, and unlike Han Fei, never preaches to his ministers about duty or loyalty.^[9]

Shen Buhai's doctrines, posthumously referred to by Han Fei as Shu or Technique (a term Shen may not have used), are described as concerned almost exclusively with the "ruler's role and the methods by which he may control a bureaucracy," that is, its management and personnel control: the selection of capable ministers, their performance, the monopolization of power, and the control of and relations between ruler and minister which he characterized as Wu Wei. They can therefore easily be considered the most crucial element in controlling a bureaucracy.^[10][11][12]

More specifically, Shen Buhai's methods (Fa) focused on "scrutinizing achievement and on that ground alone to give rewards, and to bestow office solely on the basis of ability."^[13] Liu Xiang wrote that Shen Buhai advised the ruler of men use technique (shu) rather than punishment, relying on persuasion to supervise and hold responsible, though very strictly.^[14] Liu considered Shen's "principal tenet" to be (Xing-Ming 刑名).^[15] Representing equally applied checks against the power of officials, Xing-Ming seeks the right person for the job through the examination of skill, achievement and (more rarely) seniority.

Shen Buhai's personnel control, or rectification of names (crudely, "office titles") worked through "strict performance control," correlating performance and posts.^[11] It would become a central tenet of both "Legalist" statecraft^[16] and its Taoistic derivatives. Creel believed that the correlation between Wu-wei and Xing-ming may have informed the Taoist conception of the formless Tao that "gives rise to the ten thousand things."^[17]

In the Han Dynasty secretaries of government who had charge of the records of decisions in criminal matters were called Xing-Ming, a term used by Han Fei, which Sima Qian (145 or 135 – 86 BC) and Liu Xiang (77 BC – 6 BC) attributed to the doctrine of Shen Buhai(400 BC – c. 337 BC).^[18][19] Liu Xiang goes as far as to define Shen Buhai's doctrine as Xing-Ming.^[20] Shen actually used an older, more philosophically common equivalent, ming-shih, linking the "Legalist doctrine of names" with the name and reality (ming shih) debates of the school of names.^[21] Such discussions are also prominent in the Han Feizi.^[22]

Sima Qian and Liu Xiang define Xing-Ming as "holding actual outcome accountable to Ming."^[23][24] Ming sometimes has the sense of speech—so as to compare the statements of an aspiring officer with the reality of his actions—or reputation, again compared with real conduct (xing "form" or shih "reality").^[25] Rather than having to look for "good" men, Xing-Ming (or ming-shih) can seek the right man for a particular post, though doing so implies a total organizational knowledge of the regime.^[26] More simply though, it can allow ministers to come forward with proposals of specific cost and time frame, leaving their definition to competing ministers—the doctrine favored by Han Fei. Preferring exactness, it combats the tendency to promise too much;^[27] the correct articulation of Ming is considered crucial to the realization of projects.^[16]

The logician Deng Xi (died 501 BCE) is cited by Liu Xiang for the origin of the principle of Xing-Ming. Serving as a minor official in the state of Zheng, he is reported to have drawn up a code of penal laws. Associated with litigation, he is said to have argued for the permissibility of contradictory propositions, likely engaging in hair-splitting debates on the interpretation of laws, legal principles and definitions.^[28]

Shen Buhai solves this through Wu wei, or not getting involved, making an official's words his own responsibility.^[18] Shen Buhai says, "The ruler controls the policy, the ministers manage affairs. To speak ten times and ten times be right, to act a hundred times and a hundred times succeed - this is the business of one who serves another as minister; it is not the way to rule."^[29] Noting all the details of a claim and then attempting to objectively compare them with his achievements through passive mindfulness (the "method of yin"), Shen Buhai's ruler neither adds to nor detracts from anything, giving names (titles/offices) on the basis of claim.^[18]

Shen supported reward for visible results,^[30] using ming-shih for investigation and appointment, but the legal system of Han was apparently confused, prohibiting uniform reward and punishment. We have no basis to suppose that Shen advocated the doctrine of rewards and punishment (of Shang Yang, as Han Fei did), and Han Fei criticizes him for not unifying the laws.^[31]

Following Shen, Han Fei strongly advocated Wu wei. During the Han dynasty up until the reign of Han Wudi, rulers confined their activity "chiefly to the appointment and dismissal of his high officials," a plainly "Legalist" practice inherited from the Qin dynasty.^[32] This "conception of the ruler's role as a supreme arbiter, who keeps the essential power firmly in his grasp" while leaving details to ministers, has a "deep influence on the theory and practice of Chinese monarchy."

Shen Buhai argued that if the government were organized and supervised relying on proper method (Fa), the ruler need do little—and must do little.^[33] Unlike "Legalists" Shang Yang and Han Fei, Shen did not consider the relationship between ruler and minister antagonistic necessarily.^[34] Apparently paraphrasing the Analects, Shen Buhai's statement that those near him will feel affection, while the far will yearn for him,^[35] stands in contrast to Han Fei, who considered the relationship between the ruler and ministers irreconcilable.^[36]

However, Shen still believed that the ruler's most able ministers are his greatest danger,^[37] and is convinced that it is impossible to make them loyal without techniques.^[38] Creel explains: "The ruler's subjects are so numerous, and so on alert to discover his weaknesses and get the better of him, that it is hopeless for him alone as one man to try to learn their characteristics and control them by his knowledge... the ruler must refrain from taking the initiative, and from making himself conspicuous--and therefore vulnerable--by taking any overt action."^[39]

Emphasizing the use of administrative methods (Fa) in secrecy, Shen Buhai portrays the ruler as putting up a front to hide his weaknesses and dependence on his advisers.^[40] Shen therefore advises the ruler to keep his own counsel, hide his motivations, and conceal his tracks in inaction, availing himself of an appearance of stupidity and insufficiency. Shen says:^[41]

If the ruler's intelligence is displayed, men will prepare against it; if his lack of intelligence is displayed, they will delude him. If his wisdom is displayed, men will gloss over (their faults); if his lack of wisdom is displayed, they will hide from him. If his lack of desires is displayed, men will spy out his true desires; if his desires are displayed, they will tempt him. Therefore (the intelligent ruler) says 'I cannot know them; it is only by means of non-action that I control them.'^[42]

Acting through administrative method (Fa), the ruler conceals his intentions, likes and dislikes, skills and opinions. Not acting himself, he can avoid being manipulated.^[43] The ruler plays no active role in governmental functions. He should not use his talent even if he has it. Not using his own skills, he is better able to secure the services of capable functionaries. Creel argues that not getting involved in details allowed Shen's ruler to "truly rule," because it leaves him free to supervise the government without interfering, maintaining his perspective.^[44] Seeing and hearing independently, the ruler is able to make decisions independently, and is, Shen says, able to rule the world thereby.^[45]

The ruler is like a mirror, reflecting light, doing nothing, and yet, beauty and ugliness present themselves; (or like) a scale establishing equilibrium, doing nothing, and yet causing lightness and heaviness to discover themselves. (Administrative) method (Fa) is complete acquiescence. (Merging his) personal (concerns) with the public (weal), he does not act. He does not act, and yet the world itself is complete.

— Shen Buhai^[46]

This Wu wei (or nonaction) might be said to end up the political theory of the "Legalists," if not becoming their general term for political strategy, playing a "crucial role in the promotion of the autocratic tradition of the Chinese polity." The (qualified) non-action of the ruler ensures his power and the stability of the polity.^[47]

A commentary to the Shiji cites a now-lost book, quoting as Shen Buhai saying: "By employing (yin), 'passive mindfulness', in overseeing and keeping account of his vassals, accountability is deeply engraved." The Guanzi similarly says: "Yin is the way of non-action. Yin is neither to add to nor to detract from anything. To give something a name strictly on the basis of its form – this is the Method of yin." Yin aimed at concealing the ruler's intentions, likes and opinions. Despite such injunctions, it is clear that the ruler's assignments would still be completely up to him.^[48]

Sinologist John Makeham explains: "assessing words and deeds requires the ruler's dispassionate attention; (yin is) the skill or technique of making one's mind a tabula rasa, non-committaly taking note of all the details of a man's claims and then objectively comparing his achievements of the original claims." Adherence to the use of technique in governing requires the ruler not engage in any interference or subjective consideration.

Originally credited by Creel as syncretic precedent for Shen Buhai's Han dynasty association within the Fajia, Chapter 43 of the Han Feizi says:

Now Shen Buhai spoke about the need of Shu (fa-shu "Method" or "Technique") and Shang Yang practices the use of Fa ("Standards" as including law). What is called Shu is to create posts according to responsibilities, hold actual services accountable according to official titles, exercise the power over life and death, and examine the abilities of all his ministers; these are the things that the ruler keeps in his own hand. Fa includes mandates and ordinances promulgated to the government offices, penalties that are definite in the mind of the people, rewards that are due to the careful observers of standards, and punishments that are inflicted upon those who violate orders. It is what the subjects and ministers take as a model. If the ruler is without Shu he will be overshadowed; if the subjects and ministers lack Fa they will be insubordinate. Thus, neither can be dispensed with: both are implements of emperors and kings.

Although Shu technique appears in the Shen Buhai fragments, Creel would argue that it had not evolved in yet Shen Buhai's time, considering their fragments as representing a later interpolation. It's question is a point of contention for the nature of Shen Buhai.^[49] As would not be unique, Edward L. Shaughnessy glosses Shen Buhai under Han Fei's Shu. He does not interpret him along Han Fei lines, but others have simply glossed Shen Buhai along Han Fei lines, with the tactics and trickery of the Han Feizi's later chapters, and even the harsh laws of Shang Yang. But, they would not appear to present any academic argument available in the English language.

Sinologist Hansen (1992), current of the Stanford Encyclopedia of Daoism, recalls Benjamin Schwarz (1985) as citing Han Fei's two handles of punishment and reward as clearly part of Shu, in rebuttal to Creel's insistence that Shen Buhai was not a Legalist. As at least illustrative of Han Fei, Hansen focuses on Shu "method" or "technique" as safeguarding the ruler's power to punish and reward, which must be kept in his hands, that punishment and reward can not be meted out without the ruler's approval, or that persons are immune to it.

As compared with Shang Yang, the thrust of the more administrative Shu is not the establishment of fa as codified law. Rather, relying on fa (objective standards), the ruler ought at least not mete out reward or punishment on mere recommendation or fame. A monopoly over reward and punishment does not itself make Shen Buhai or his ruler a Shang Yangian Legalist, even if Han Fei advocates it. Hence, Creel would argue that Han Fei does not himself consider Shen Buhai a Shang Yangian Legalist (although the concept of Legalist did not exist yet.)

Whether it was itself relying on the Han Feizi's account or not, the Huainanzi says that when Shen Buhai lived, the officials of the state of Han were at cross-purposes and did not know what practices to follow. Shaughnessy points out that Shen Buhai would have at least been aware of Li Kui's book of law, as Shang Yang's predecessor. Taking Li Kui as a hypothetical influence, Shaughnessy only suggests Shen Buhai as similar in the sense of attempting to implement a more meritocratic government.

Tao Jiang notes Korean scholar Soon-Ja Yang as still relying on Creel's fragments, taking the "absence of Shu much more seriously." Opposing Han Fei's comparison of him with Shang Yang, in favour of a more Confucian-Legalist interpretation, she interpolates a universal registry along the lines of the Confucian rectification of names. Not specifically endorsing the interpretation, Tao Jiang takes her as illustrative of Creel, namely that Shen Buhai does not follow Han Fei's (significantly later) broader doctrine, but rather as aiming at a cooperative, impartial government along Creel lines.^[50]

Lacking metaphysical connotation, Shen used the term Wu wei in an earlier, more Confucian sense to mean that the ruler, though vigilant, should not interfere with the duties of his ministers. With earlier modern scholars suggesting that Shen's statecraft blended with Daoism, sinnce the bulk of the Tao Te Ching appeared to have been composed later, Creel argued that it might therefore be assumed that Shen influenced instead the Tao Te Ching.^[51] With Wu wei having a broader ancient mileu than Shen Buhai, Creel's argument does not appear to have been "entirely convincing" in the west.^[52]

Michael's Loewe's Cambridge History of China still refers to the Fajia loosely as early Daoistic thinkers.^[53]

Considering Creel correct to distinguish between the stands of 'Legalism', Michael Loewe, in the Cambridge History of China, argued for their complementarity. Han Fei called both branches "the instruments of Kings and Emperors," and Li Si praises them equally, finding no contradiction between them. If he was influential in it, Loewe supposes that Shen Buhai's influence may have made Qin government more sophisticated and reasonable, as it appeared, than could be expected of the dogma of the Book of Lord Shang alone. Questioning the thrust of tracing lineages between the personas, Loewe characterizes Han dynasty persons potentially influenced by Shen Buhai as sympathizers of imperial government over that of the small states, endeavoring to permanently establish imperial government without the dangers that destroyed the Qin.^[54]

Creel elaborates a number of figures influenced potentially by Shen Buhai. These include Emperor Qinshihuang, Han figures Jia Yi, Emperor Wen of Han, Emperor Jing of Han, Chao Cuo, Dong Zhongshu, Gongsun Hong, and Emperor Xuan of Han, and Emperor Wen of Sui. Although a Confucian-oriented minister, Zhuge Liang is noted (by others) as attaching great importance to the work of Han Fei and Shen Buhai. Emperor Qinshihuang erected an inscription naming himself as taking control of the government and for the first time establishing Xing-Ming, as retroactive terminology for Shen Buhai's method.

The Shiji records Li Si as repeatedly recommending "supervising and holding responsible," which he attributed to Shen Buhai. A stele set up by Qin Shi Huang memorializes him as a sage that, taking charge of the government, established Xing-Ming. The Shiji states that Emperor Wen of Han was "basically fond of Xing-Ming."

The scholar Jia Yi advised Wen to teach his heir to use Shen Buhai's method, so as to be able to "supervise the functions of the many officials and understand the usages of government." Bringing together Confucian and Daoist discourses, Jia Yi describes Shen Buhai's Shu as a particular method of applying the Dao, or virtue. He uses the imagery of the Zhuangzi of the knife and hatchet as examples of skillful technique in both virtue and force, saying "benevolence, righteousness, kindness and generosity are the ruler's sharp knife. Power, purchase, law and regulation are his axe and hatchet." Two advisors to Wen's heir, Emperor Jing of Han were students of Xing-Ming, one passing the highest grade of examination, and admonished Jing for not using it on the feudal lords.

By the time of the civil service examination was put into place, Confucian influence saw outright discussion of Shen Buhai banned. However, the Emperor under which it was founded, Emperor Wu of Han, was both familiar with and favorable to Legalist ideas, and the civil service examination did not come into existence until its support by Gongsun Hong, who wrote a book on Xing-Ming. The Emperor Xuan of Han was still said by Liu Xiang to have been fond of reading Shen Buhai, using Xing-Ming to control his subordinates and devoting much time to legal cases.

Heir successor Emperor Jing of Han also had two mentors in the doctrines of Shen Buhai, and appointed another Legalist, Chao Cuo. Chao Cuo is regarded by the Hanshu as a student of the doctrines of Shen Buhai, Shang Yang and Xing-Ming. Unlike Jia Yi, he does appear to take interest in Shang Yang. Following the Rebellion of the Seven Kingdoms, Emperor Jing reformed criminal penalties to reduce injustices and punishments.

An advocate for the civil service examinations, Dong Zhongshu's writings on personnel testing and control uses Ming-shih in a manner "hardly distinguishable" from the Han Feizi, but unlike Han Fei, advocate against punishments. Dong's advocacy aside, the civil service examination did not come into existence until its support by Gongsun Hong, who wrote a book on xingming. Thus, Creel credits the origination of the civil service examination in part to Shen Buhai.

The Emperor Xuan of Han was still said by Liu Xiang to have been fond of reading Shen Buhai, using Xing-Ming to control his subordinates and devoting much time to legal cases. Regarded as being in opposition to Confucians, as Confucianism ascended the term disappeared. As early as the Eastern Han its full and original meaning would be forgotten. Yet, it appears in later dynasties, and Emperor Wen of Sui is recorded as having withdrawn his favour from the Confucians, giving it to "the group advocating Xing-Ming and authoritarian government."^[55]

Footnotes

Works cited

• Creel, Herrlee G., The Origins of Statecraft in China. ISBN 0-226-12043-0
• Creel, Herrlee G., Shen Pu-hai: A Chinese Political Philosopher of the Fourth Century B.C. ISBN 0-226-12027-9
• Duyvendak, J.J.L., The Book of Lord Shang: Translated From the Chinese with Notes by J.J.L. Duyvendak.
• Knechtges, David R. (2014). "Shenzi 申子". In Knechtges, David R.; Chang, Taiping (eds.). Ancient and Early Medieval Chinese Literature: A Reference Guide, Part Two. Leiden: Brill. pp. 874–75.
• Li, Shen, "Shenzi". Encyclopedia of China (Chinese History Edition), 1st ed.
• Pan, Fuen, "Shen Buhai". Encyclopedia of China (Philosophy Edition), 1st ed.
• Zhang, Guohua, "Shen Buhai". Encyclopedia of China (Law Edition), 1st ed.

• Hong Kong University Philosophy Department, Shen Buhai