應之曰：「是不可程也。人不食十日則死，大寒之隆，不衣亦死。 謂之衣食孰急於人，則是不可一無也，皆養生之具也。今申不害言術，而公孫鞅為法。 術者，因任而授官，循名而責實，操殺生之柄，課群臣之能者也，此人主之所執也。 法者，憲令著於官府，刑罰必於民心，賞存乎慎法，而罰加乎姦令者也，此臣之所師也。 君無術則弊於上，臣無法則亂於下，此不可一無，皆帝王之具也。」
對曰：「申不害，韓昭侯之佐也。韓者，晉之別國也。晉之故法未息， 而韓之新法又生；先君之令未收，而後君之令又下。申不害不擅其法，不一其憲令則姦多。 故利在故法前令則道之，利在新法後令則道之。利在故新相反，前後相勃，則申不害雖十使昭侯用術， 而姦臣猶有所譎其辭矣。故託萬乘之勁韓（七十）〔十七〕年而不至於霸王者，雖用術於上， 法不勤飾於官之患也。
公孫鞅之治秦也，設告相坐而責其實，連什伍而同其罪，賞厚而信， 刑重而必。是以其民用力勞而不休，逐敵危而不卻，故其國富而兵強；然而無術以知姦， 則以其富強也資人臣而已矣。及孝公、商君死，惠王即位，秦法未敗也，而張儀以秦殉韓、魏。 惠王死，武王即位，甘茂以秦殉周。武王死，昭襄王即位，穰侯越韓、魏而東攻齊， 五年而秦不益尺土之地，乃城其陶邑之封。應侯攻韓八年，成其汝南之封。自是以來， 諸用秦者皆應、穰之類也。故戰勝則大臣尊，益地則私封立，主無術以知姦也。商君雖十飾其法， 人臣反用其資。故乘強秦之資數十年而不至於帝王者，法（不）〔雖〕勤飾於官，主無術於上之患也。」
申子言『〔治〕不踰官， 雖知〔弗〕言。』治不踰官，謂之守職也可；知而弗言，是不謂過也。人主以一國目視， 故視莫明焉；以一國耳聽，故聽莫聰焉。今知而弗言，則人主尚安假借矣？
商君之法（日）〔曰〕： 『斬一首者爵一級，欲為官者為五十石之官；斬二首者爵（一）〔二〕級，欲為官者為百石之官。』 官爵之遷與斬首之功相稱也。今有法曰：『斬首者令為醫、匠。』則屋不成而病不已。 夫匠者手巧也，而醫者齊藥也，而以斬首之功為之，則不當其能。今治官者，智能也； 今斬首者，勇力之所加〔也〕。〔以勇力之所加〕而治（者）智能之官。是以斬首之功為醫、匠也。
Chapter XLIII. Deciding Between Two Legalistic Doctrines1
Some inquirer asked: "Of the teachings of the two authorities, Shên Pu-hai and Kung-sun Yang, which is more urgently needful to the state?"
In reply I said: "It is impossible to compare them. Man, not eating for ten days, would die, and, wearing no clothes in the midst of great cold, would also die. As to which is more urgently needful to man, clothing or eating, it goes without saying that neither can be dispensed with, for both are means to nourish life. Now Shên Pu-hai spoke about the need of tact and Kung-sun Yang insisted on the use of law. Tact is the means whereby to create posts according to responsibilities, hold actual services accountable according to official titles, exercise the power over life and death, and examine the officials' abilities. It is what the lord of men has in his grip. Law includes mandates and ordinances that are manifest in the official bureaux, penalties that are definite in the mind of the people, rewards that are due to the careful observers of laws, and punishments that are inflicted on the offenders against orders. It is what the subjects and ministers take as model. If the ruler is tactless, delusion will come to the superior; if the subjects and ministers are lawless, disorder will appear among the inferiors. Thus, neither can be dispensed with: both are implements of emperors and kings."
The inquirer next asked: "Why is it that tact without law or law without tact is useless?"
In reply I said: "Shên Pu-hai was assistant to Marquis Chao of Han. Han was one of the states into which Chin had been divided. Before the old laws of Chin had been repealed, the new laws of Han appeared; before the orders of the earlier rulers had been removed, the orders of the later rulers were issued. As Shên Pu-hai neither enforced the laws nor unified the mandates and ordinances, there were many culprits. Thus, whenever old laws and earlier orders produced advantages, they were followed; whenever new laws and later orders produced advantages, they were followed, too. So long as old and new 2 counteracted each other and the earlier and later orders contradicted each other, even though Shên Pu-hai advised Marquis Chao ten times to use tact, yet the wicked ministers still had excuses to twist their words. Therefore, though he counted on Han's strength of ten thousand chariots, Han failed to attain Hegemony in the course of seventeen years, 3 which was the calamity of the neglect of law by the officials despite the use of tact by the superior.
"Kung-sun Yang, while governing Ch`in, established the system 4 of denunciation and implication and called the real culprit to account; he organized groups of ten and five families and made members of the same group share one another's crime. Rewards were made liberal and certain; punishments were made severe and definite. Consequently, the people exerted their forces laboriously but never stopped, pursued the enemy perilously but never retreated. Therefore, the state became rich and the army strong. However, if he had no tact whereby to detect villainy, by enriching the state and strengthening the army he benefited nobody other than the subsequent ministers. Following the death of Duke Hsiao and Lord Shang and the accession of King Hui to the throne, the law of Ch`in had as yet fallen to the ground, when Chang Yi at the cost of Ch`in's interest complied with the demands of Han and Wey. Following the death of King Hui and the accession of King Wu to the throne, Kan Mu at the cost of Ch`in's interest complied with the request of Chou. Following the death of King Wu and the accession of King Chao Hsiang to the throne, Marquis Jang crossed Han and Wey and marched eastward to attack Ch`i, whereas the five years' campaign gained Ch`in not even one foot of territory but merely secured for him the Fief of T`ao. Again, Marquis Ying attacked Han for eight years only to secure for himself the Fief of Ju-nan. Thenceforward, those who have served Ch`in, have been the same types of men as Ying and Jang. Therefore, whenever the army wins a war, chief vassals are honoured; whenever the state expands its territory, private feuds are created. So long as the sovereign had no tact whereby to detect villainy, even though Lord Shang improved his laws ten times, the ministers in turn utilized the advantages. Therefore, though he made use of the resources of strong Ch`in, Ch`in failed to attain the status of an empire in the course of several decades, 5 which was the calamity of the sovereign's tactlessness despite 6 the officials' strict observance of law."
The inquirer again asked: "Suppose the ruler applies the tact of Shên Tzŭ and the officials observe the law of Lord Shang. Would everything work out right?"
In reply I said: "Shên Tzŭ was not thorough in the doctrine of tact, Lord Shang was not thorough in the doctrine of law."
"According to Shên Tzŭ, no official should override his commission and utter uncalled-for sentiments despite his extra knowledge. Not to override one's commission means to keep to his duty. To utter uncalled-for sentiments despite one's extra knowledge, is called a fault. After all, it is only when the lord of men sees things with the aid of everybody's eyes in the country that in visual power he is surpassed by none; it is only when he hears things with the aid of everybody's ears in the country that in auditory power he is surpassed by none. Now that those who know do not speak, where is the lord of men going to find aid?
"According to the Law of Lord Shang, `who cuts off one head in war is promoted by one grade in rank, and, if he wants to become an official, is given an office worth fifty piculs; who cuts off two heads in war is promoted by two grades in rank, and, if he wants to become an official, is given an office worth one hundred piculs'. Thus, promotion in office and rank is equivalent to the merit in head-cutting. Now supposing there were a law requesting those who cut off heads in war to become physicians and carpenters, then neither houses would be built nor would diseases be cured. Indeed, carpenters have manual skill; physicians know how to prepare drugs; but, if men are ordered to take up these professions on account of their merits in beheading, then they do not have the required abilities. Now, governmental service requires wisdom and talent in particular; beheading in war is a matter or courage and strength. To fill governmental offices which require wisdom and talent with possessors of courage and strength, is the same as to order men of merit in beheading to become physicians and carpenters."
Hence my saying: "The two philosophers in the doctrines of law and tact were not thoroughly perfect."
1. 定法. Its English rendering by L. T. Chên is "The Codification of Law" (Liang, op. cit., p. 114, f.3), which is a serious mistake.
2. With Lu Wên-shao 利在 above 故新 is superfluous.
3. With Ku Kuang-ts`ê 七十 should be 十七. Shên Pu-hai was Premier of Han from 351 to 337 b.c.
4. One failing to denounce anybody else's crime was punished as if he had committed the crime oneself.
5. Kung-sun Yang went to Ch`in in 361 b.c., the first year of the reign of Duke Hsiao. His petition for radical changes in the law was accepted in 359 b.c. when Duke Hsiao trusted him with all state affairs. Upon the death of Duke Hsiao in 335 b.c. Lord Shang had already governed Ch`in for over twenty years, which period of time was thereby referred to in the text.
6. With Lu Wên-shao and Ku Kuang-ts`ê 不 above 勤飾 should be 雖.
|Published by The Institute for Advanced Technology in the Humanities, © Copyright 2003 by Anne Kinney and the University of Virginia