Discourses on Salt and Iron - Part 2, Chapters 55 and 56

I'll probably talk about the inaccuracies behind labels like Confucianism, Daoism, and Legalism in part 3.

This is part two of my post on the Discourses on Salt and Iron, which I'm planning on making into a 3-parter. The two chapters I've translated here mostly debate the true purpose and meaning of law and how to actually promote an orderly society. It's a little redundant in the sense that each side essentially makes the same point over and over again, but it's pretty funny how each time, they try to turn around the analogy or expression their opponent just used against them. Also, there's nothing quite like reading expressions in different languages that are purely the product of differing cultural references.

The upcoming third and final part won't have any translations but will be just my thoughts on the rhetoric and historical background regarding the debate points I've translated. For the translation, I'd say I tried to be 80% literal so I could preserve a lot of the colourful expressions, parallelisms, and syntax. The quotations from the Book of Odes are from James Legges' translation but everything else is my translation which means that there may/will be some errors since I'm no expert in classical Chinese.

Ch 55: 刑德 Punishments and Morality

大夫曰：「令者所以教民也，法者所以督姦也。令嚴而民慎，法設而姦禁。罔疏則獸失，法疏則罪漏。罪漏則民放佚而輕犯禁。故禁不必，怯夫徼倖；誅誠，蹠、蹻不犯。是以古者作五刑，刻肌膚而民不踰矩。」

The dafu (grandee/counsellor 大夫) said thus: “Edicts (ling 令) are the means by which one educates the people, and laws (fa 法) are the means by which one looks out for criminality. When edicts are strict, the people are prudent, and when laws are established, criminality is checked. When nets are loosened, the animals escape, and when laws are slackened, crime runs loose. When crime runs loose, the people run amok and make light of prohibitions. When prohibitions are not compulsory, even the timid will become reckless, but when punishments are substantial, even the likes of Robber Zhi and Zhuang Qiao will not violate prohibitions. Therefore the ancients created the five punishments such as tattooing the flesh so that the people did not tread upon the law.”

文學曰：「道逕眾，人不知所由；法令眾，民不知所辟。故王者之制法，昭乎如日月，故民不迷；曠乎若大路，故民不惑。幽隱遠方，折乎知之，室女童婦，咸知所避。是以法令不犯，而獄犴不用也。昔秦法繁於秋荼，而網密於凝脂。然而上下相遁，姦偽萌生，有司治之，若救爛撲焦，而不能禁；非網疏而罪漏，禮義廢而刑罰任也。方今律令百有餘篇，文章繁，罪名重，郡國用之疑惑，或淺或深，自吏明習者，不知所處，而況愚民！律令塵蠹於棧閣，吏不能遍睹，而況於愚民乎！此斷獄所以滋眾，而民犯禁滋多也。『宜犴宜獄，握粟出卜，自何能穀？』刺刑法繁也。親服之屬甚眾，上殺下殺，而服不過五。五刑之屬三千，上附下附，而罪不過五。故治民之道，務篤其教而已。」

The literati said thus: “When roads and trails are many, the people do not know which way to go. When laws and edicts are many, the people do not know what they are permitted to do. Hence when a king creates laws, he makes them as bright and clear as the sun and moon so that the people do not lose direction, and as broad as a great highway so that the people are not confused. In doing so, even those dwelling in remote and distant corners will know the laws, and even maidservants, children, wives, and the ignorant will know what they are permitted to do. Thereupon, laws and edicts are not violated, while jails and prisons are not needed. In the past, the laws of Qin were more numerous than the autumn reeds, finer and more minute than a clump of congealed fat. However, both superiors and inferiors alike avoided them, deviancy and deceit took sprout, and even if an officer tried to administer them, like trying to help a man from a brightly raging fire, he would be unable to prohibit violations. This was not a case of slackening the nets of law so that crime ran loose, but rather discarding propriety and righteousness and instead entrusting punishments and penalties. In the present, the penal and administrative laws (lüling 律令) spill out over a hundred chapters of paragraphs and paragraphs. Names and types of crimes overlap, and so confused are the commanderies in employing them that some apply it too lightly and others too heavily. If even the learned officials do not know, how much worse off is the uneducated populace! The legal codes are gathering dust and being eaten by weevils in warehouses and offices. If even the officials cannot read through all of them, how much worse off is the uneducated populace! This is the reason why criminal hearings are increasing, as are the number of people violating prohibitions. ‘Deemed fit inmates for the prisons! With a handful of grain I go out and divine, how I may be able to become good?’ This line [from the Book of Poetry] refers to such cases of too many penal laws. There may be exceedingly many types of clothes for mourning relatives, but if one trims the top and bottom outliers, the main types of mourning clothes do not number more than five. There may be three thousand offences that can warrant the five punishments, but if one trims the top and bottom outliers, the offences do not number more than five. Therefore, the way to govern people well is sincerely striving to morally educate them and nothing more.”

大夫曰：「文學言王者立法，曠若大路。今馳道不小也，而民公犯之，以其罰罪之輕也。千仞之高，人不輕凌，千鈞之重，人不輕舉。商君刑棄灰於道，而秦民治。故盜馬者死，盜牛者加，所以重本而絕輕疾之資也。武兵名食，所以佐邊而重武備也。盜傷與殺同罪，所以累其心而責其意也。猶魯以楚師伐齊，而春秋惡之。故輕之為重，淺之為深，有緣而然。法之微者，固非眾人之所知也。」

The dafu said thus:  “The literati have said that a king, when establishing laws, makes them as broad as a great highway. The path that the people presently traverse is not small, yet they openly violate the law, and this is due to the levity of punishments for crimes. A height of 1000 ren (8000 Chinese 尺 feet) cannot be easily climbed, and a weight of 1000 jun (3000 Chinese 斤 catties) cannot be easily lifted. When Shang Yang punished even the act of littering the roads, the people of Qin became well governed. Thus to put horse-thieves to death and cattle-thieves to the sword are the means by which one respects the roots and severs the source of careless offences. Similarly, giving rank and food to soldiers are also the means by which one aids the frontier and respects military readiness. That theft and assault are dealt the same as murder is the means by which one reprimands a man’s heart and scolds his mind. This is analogous to Lu using Chu’s army to attack Qi, which the Spring and Autumn Annals criticized. Thus there is a reason to why light offences are dealt with heavily, and why shallow offences are treated deeply. The minute details of law is certainly not something that which the masses must know.”

文學曰：「《詩》云：『周道如砥，其直如矢。』言其易也。『君子所履，小人所視。』言其明也。故德明而易從，法約而易行今馳道經營陵陸，紆周天下，是以萬里為民阱也。罻羅張而縣其谷，辟陷設而當其蹊，矰弋飾而加其上，能勿離乎？聚其所欲，開其所利，仁義陵遲，能勿踰乎？故其末途，至於攻城入邑，損府庫之金，盜宗廟之器，豈特千仞之高、千鈞之重哉！管子曰：『四維不張，雖皋陶不能為士。』故德教廢而詐偽行，禮義壞而姦邪興，言無仁義也。仁者，愛之效也；義者，事之宜也。故君子愛仁以及物，治近以及遠。傳曰：『凡生之物，莫貴於人；人主之所貴，莫重於人。』故天之生萬物以奉人也，主愛人以順天也。聞以六畜禽獸養人，未聞以所養害人者也。魯廄焚，孔子罷朝，問人不問馬，賤畜而重人也。今盜馬者罪死，盜牛者加。乘騎車馬行馳道中，吏舉苛而不止，以為盜馬，而罪亦死。今傷人持其刀劍而亡，亦可謂盜武庫兵而殺之乎？人主立法而民犯之，亦可以為逆而輕主約乎？深之可以死，輕之可以免，非法禁之意也。法者，緣人情而制，非設罪以陷人也。故春秋之治獄，論心定罪。志善而違於法者免，志惡而合於法者誅。今傷人未有所害，志不甚惡而合於法者，謂盜而傷人者耶？將執法者過耶？何於人心不厭也！古者，傷人有創者刑，盜有臧者罰，殺人者死。今取人兵刃以傷人，罪與殺人同，得無非其至意與？」

The literati said thus: “In the Book of Poetry, the line, ‘The way of Zhou was like a whetstone, and as straight as an arrow,’ speaks to its ease while the immediately succeeding line, ‘The superior men traversed it and the inferior men looked upon it’ speaks to its clarity. Thus when virtue illuminates the path, it is easy to follow, and when the laws are concise, it is easy to carry them out. Presently, the roads that the people traverse might be straight or winding, and be on hilly or flat terrain in encircling the whole realm. Consequently, the 10,000 li of roads become pitfalls for the people. Like casting bird-nets in ravines, setting up trapping pits and waiting nearby, or preparing arrows tied to strings and shooting them up into the sky, how could the people not be ensnared? By hoarding all desirable things and opening up all profitable ventures, benevolence and justice die slowly by a thousand cuts, so how could the people avoid treading upon the law? Thus the end of our present course will lead to the people being driven to lay siege to cities and break in to strip valuables in storehouses and steal goods from ancestral temples. So how can one speak of 1000 ren or 1000 jun with regards to present affairs!? Guanzi says, ‘Without enlarging the four cornerstones, even the likes of Gao Yao is unable to be a shi.” Thus when moral instruction is discarded while lies and deceit are conducted, when propriety and righteousness are destroyed while wickedness and iniquity flourish, this situation is said to lack benevolence and justice. Humaneness is the manifestation of love. Justice is appropriateness in executing affairs. Thus the junzi loves benevolence and extends it to all things, first governing well those that are nearby to then extend it to those afar. Thus it has been transmitted, ‘Among all living things, none are as valuable as people, and among that which is valued by lords, none are as critical as people.’ Thus all things in this world have been brought to existence to serve people, and lords love their people to accord with Heaven.

大夫俛仰未應對。

The dafu looked up and down, but did not respond.

御史曰：「執法者國之轡銜，刑罰者國之維楫也。故轡銜不飭，雖王良不能以致遠；維楫不設，雖良工不能以絕水。韓子疾有國者不能明其法勢，御其臣下，富國強兵，以制敵禦難，惑於愚儒之文詞，以疑賢士之謀，舉浮淫之蠹，加之功實之上，而欲國之治，猶釋階而欲登高，無銜橛而禦捍馬也。今刑法設備，而民猶犯之，況無法乎？其亂必也！

The yushi (Imperial Counsellor 御史) said: “Commands and laws are the bridles and bits of a state, while penalties and punishments are its ropes and oars. Thus when bridles and bits are not outfitted, even the likes of Wang Liang (famous charioteer during the Spring and Autumn period) would be unable to drive a horse very far. When ropes and oars are not equipped, even a skilled oarsman would be unable to cross the waters. Han Fei detested those rulers who possessed a state but were unable to clarify its laws and authority, control his ministers, enrich his state, and strengthen his soldiers to thereby overpower his enemies and suppress any difficulties. He loathed those rulers who, deluded by the writings and expressions of the foolish Ru-scholars, doubted the strategies of wise men, employed frivolous and obscene men, and raised such insects even above those with real merit and talent. To commit such blunders and yet desire for a state to be well-governed is to let go of ladders and yet want to climb up high, or to do without bridles and bits but attempt to control a rough horse. Presently, when punishments and laws are employed, the people still violate them, so how much worse would things be without any laws at all? Chaos would surely be inevitable!”

文學曰：「轡銜者，御之具也，得良工而調。法勢者，治之具也，得賢人而化。執轡非其人，則馬奔馳。執軸非其人，則船覆傷。昔吳使宰嚭持軸而破其船，秦使趙高執轡而覆其車。今廢仁義之術，而任刑名之徒，則復吳、秦之事也。夫為君者法三王，為相者法周公，為術者法孔子，此百世不易之道也。韓非非先王而不遵，舍正令而不從，卒蹈陷阱，身幽囚，客死於秦。夫不通大道而小辯，斯足以害其身而已。」

The literati said thus: “Bridles and bits are tools of control, but one must also have a skilled specialist to keep [horses/cows] in check. Law and authority are tools of governance, but one must also have wise men to morally transform the people. If he who grabs the bridle is not skilled, then the horse will still run wild, and if he who holds a rudder’s pivot is not accustomed, the boat will flip over or be damaged. In the past, Wu once ordered its chancellor Pi to hold the rudder’s pivot, who then crashed the boat. Qin once made Zhao Gao take the bridle, who then overturned the carriage. At present, you discard the techniques of benevolence and righteousness, and entrust matters to the follower of the forms and names (刑名). This is to repeat the mistakes of Wu and Qin. One who acts as a lord must model himself on the Three Kings, one who acts as a chancellor must model himself on the Duke of Zhou, and one who acts as a scholar must model himself on Confucius. This is the Way that remains unchanged for a hundred generations. Han Fei disparaged the kings of antiquity and did not follow them. He discarded proper edicts and did not comply with them. In the end, he stepped into a trap, became incarcerated, and died abroad in Qin. To not comprehend the Great Way but understand petty rhetoric was sufficient for his self-destruction.”

Ch 56: 申韓 Shen Buhai and Han Fei

御史曰：「待周公而為相，則世無列國。待孔子而後學，則世無儒、墨。夫衣小缺，憏裂可以補，而必待全匹而易之；政小缺，法令可以防，而必待雅、頌乃治之；是猶舍鄰之醫，而求俞跗而後治病，廢汙池之水，待江、海而後救火也。迂而不徑，闕而無務，是以教令不從而治煩亂。夫善為政者，弊則補之，決則塞之，故吳子以法治楚、魏，申、商以法彊秦、韓也。」

The yushi said thus: “Were a ruler to wait for a Duke of Zhou to have a chancellor, there would hardly be any states in this world. Were a person to wait for a Confucius to be educated, neither Ruism nor Mohism would exist in this world. When robes are a little frayed, one can mend it with bits of fabric or wait until a whole new set of robes are acquired to replace it. When governance is a little frayed, one can use edicts and laws to secure it or wait for the ritual music (ya 雅) and odes (song 頌) and then administer the issue. To insist on the latter is to cast away a doctor nearby and seek a Yu Fu (legendary doctor during the time of the Yellow Emperor) before treating an illness, or to discard water from a dirty pond and seeking a river or ocean before putting out a fire. When one traverses an indirect and winding path rather than head straight, and misses the crux of the matter and does not attend to the issue, one may attempt to teach and order, but none will follow and governance will be in disarray. A man who is good at governance patches holes and plugs leaks. Thus Wu Qi used laws to govern Chu and Wei, as did Shen Buhai and Shang Yang use laws to strengthen Qin and Han.”

文學曰：「有國者選眾而任賢，學者博覽而就善，何必是周公、孔子！故曰法之而已。今商鞅反聖人之道，變亂秦俗，其後政耗亂而不能治，流失而不可復，愚人縱火於沛澤，不能復振；蜂蠆螫人，放死不能息其毒也。煩而止之，躁而靜之，上下勞擾，而亂益滋。故聖人教化，上與日月俱照，下與天地同流，豈曰小補之哉！」

The literati said thus: “A ruler can choose among the masses to employ the worthy, and a scholar can read widely to choose the best, so why wait for only a Duke of Zhou and a Confucius!? Thus we say one need only to model themselves after them. When Shang Yang strayed from the path of sages, he disordered the customs of Qin and thereafter its governance descended to chaos and was unable to be ruled, for what has once been lost cannot be recovered, much as how thickets and marshes razed by foolish people cannot grow back again, or how hornets and scorpions that sting humans may die but their venom does not dissipate. When any troubles are halted and any agitations are calmed, then both those high and low will suffer from toil, and the disorder will only grow worse. Therefore, a sage’s moral transformation shines like the sun and moon upon those high and flows like the heaven and earth with those low. How can you speak [in reference to your actions] of small mendings!?”

御史曰：「衣缺不補，則日以甚，防漏不塞，則日益滋。大河之始決於瓠子也，涓涓爾，及其卒，氾濫為中國害，菑梁、楚，破曹、衛，城郭壞沮，蓄積漂流，百姓木棲，千里無廬，令孤寡無所依，老弱無所歸。故先帝閔悼其菑，親省河隄，舉禹之功，河流以復，曹、衛以寧。百姓戴其功，詠其德，歌『宣房塞，萬福來』焉，亦猶是也，如何勿小補哉！」

The yushi said thus: “When clothes are frayed and not mended, then they grow worse by day. When dikes leak but are not sealed, they leak worse with each day. When the dikes are damaged upstream the Yellow River at Huzi, the leaking was slow and gradual at first, but it eventually turned into a great flood that harmed all the central states. It ravaged Liang and Chu, wrecked Cao and Wey, demolished city walls, and carried away all belongings and valuables. The people survived by perching on trees, and for a thousand li not a single dwelling remained, so that orphans and widows had nothing to rely upon while the old and the weak had nowhere to return to. Thus the former Emperor, distressed and grieving this calamity, carefully inspected the dikes and carried out what Yu the Great had done to restore the river’s flow and make the lands of Cao and Wey peaceful once more. The people exalted his accomplishment, extolled his virtue, and sang ‘The river blocked at Xuanfang; fortune now abounds.’ Governance is like this, so how can one not speak of small mendings!?”

文學曰：「河決若甕口，而破千里，況禮決乎？其所害亦多矣！今斷獄歲以萬計，犯法茲多，其為菑豈特曹、衛哉！夫知塞宣房而福來，不知塞亂原而天下治也。周國用之，刑錯不用，黎民若，四時各終其序，而天下不孤。頌曰：『綏我眉壽，介以繁祉。』此夫為福，亦不小矣！誠信禮義如宣房，功業已立，垂拱無為，有司何補，法令何塞也？」

The literati said thus: “When the dikes of a river first leaks, the leak is like a small mouth of a jar, but it eventually grows to destroy a thousand li. But what of when the dikes of ritual leaks? Surely the harm it will wreak is even greater! At present, the number of penal cases adjudicated per year numbers some ten-thousand cases, and still the legal violations continue to grow more numerous, so how could this calamity only affect the lands of Cao and Wey!? While you know that blocking the river at Xuanfang will lead to fortune, you do not know that blocking the source of disorder will lead to the realm’s good governance. The Zhou, however, employed this method and did not use punishments, and thus the commoners became as orderly as the changing of four seasons each year, and Heaven did not abandon them. The Odes say, ‘You comfort me into old age, and aid me with manifold blessings.’ The fortunes received in this ode were not small in the least bit! Had you sincerely believed in rituals and righteousness as you believed in Xuanfang, the great task would already be fulfilled, the ruler could fold his arms and need not do anything. What mending need an officer do then? What sealing need laws and edicts do then?”

御史曰：「犀銚利鉏，五穀之利而間草之害也。明理正法，姦邪之所惡而良民之福也。故曲木惡直繩，姦邪惡正法。是以聖人審於是非，察於治亂，故設明法，陳嚴刑，防非矯邪，若隱括輔檠之正弧刺也。故水者火之備，法者止姦之禁也。無法勢，雖賢人不能以為治；無甲兵，雖孫、吳不能以制敵。是以孔子倡以仁義而民從風，伯夷遁首陽而民不可化。」

The yushi said thus: “Sharp hoes are beneficial for growing the five grains but harmful to the weeds. Clear reason and proper laws are loathed by evil-doers but are blessings to good people. Thus the crooked tree detests the straight ruler, as do evil-doers despise proper laws. Therefore, the sages judged right from wrong, evaluated order from disorder, and then established clear laws and laid down strict punishment to prevent mistakes and correct errors, just as how yinkuo 隱括 and fujin 輔檠 straightens warped bows. As water is used to prepare against possible fire, laws are used to prevent depravity from occurring. Without laws and authority, even the worthy man is unable to govern well; without arms and armour, even a Sun Tzu or Wu Qi is unable to defeat enemies. That is why even when Confucius led the way in benevolence and righteousness, the people instead followed popular customs, and when Bo Yi withdrew to Shouyang, the people were not morally transformed.”

文學曰：「法能刑人而不能使人廉，能殺人而不能使人仁。所貴良醫者，貴其審消息而退邪氣也，非貴其下鍼石而鑽肌膚也。所貴良吏者，貴其絕惡於未萌，使之不為，非貴其拘之囹圄而刑殺之也。今之所謂良吏者，文察則以禍其民，強力則以厲其下，不本法之所由生，而專己之殘心，文誅假法，以陷不辜，累無罪，以子及父，以弟及兄，一人有罪，州里驚駭，十家奔亡，若癰疽之相濘，色淫之相連，一節動而百枝搖。《詩》云：『舍彼有罪，淪胥以鋪。』痛傷無罪而累也。非患銚耨之不利，患其舍草而芸苗也。非患無準平，患其舍枉而繩直也。故親近為過不必誅，是鋤不用也；疏遠有功不必賞，是苗不養也。故世不患無法，而患無必行之法也。」

The literati said thus: “Laws are able to punish humans but unable to make them honest. They can kill humans but cannot make them benevolent. Good doctors are valued because they examine their patients’ respiration and can expel foul qi 氣, not because they use bian stone needles to poke skin. Good officials are valued because they uproot evil before it sprouts to prevent their growth, not because they put people in prison and execute them. Those whom you call good officials today know laws so minutely as to ruin the people and are so forceful as to harm those subject to them. They do not root the laws upon the principles it arose from, but rather solely upon their cruel hearts. They borrow the law to ensnare the innocent and burden the blameless, so as to incriminate the father on account of his son, and to embroil the older brother on account of the younger brother. Thus when one man is guilty of a crime, the whole neighbourhood is alarmed and startled so that 10 families flee. It is like how boils fester into abscesses, or how attractiveness invites lustfulness. The moving of a single part ends up shaking a hundred branches. The Book of Poetry says, ‘Let alone the criminals, lest indiscriminately involve [the innocent] in ruin,’ in reference to this harming of the blameless and burdening them. Rather than worry about the hoes not being sharp, one should leave aside the weeds and instead worry about the harvesting of grains. Rather than worry about that which are not flat and level, one should leave aside warped things and instead worry about applying the fixing-line to things that are straight. When those who are near and dear err, to not necessarily punish them severely is to not [necessarily] use the hoe, and when those who are distant and unfamiliar are to accomplish some merit, to not necessarily reward them is to not [necessarily] nourish the sprouts. Thus the world will not worry about lawlessness, but rather worry about laws that are always followed not existing.”