상앙(商鞅)의 법(法)과 힘

Abstract

Can violence be sometimes inevitable? If so, can such inevitable violence be justified as law? This paper examines how these fundamental issues in legal philosophy were nested in the context of the early Chinese legalist(法家) thought. The early legalist Shang Yang(商鞅) argues that governance by law(法) fundamentally relies on enforcement(力), and that the politics of violence is necessary in order to establish sociopolitical orderliness(治). In fact, Sang Yang provides two justifications for the inevitability of governance based on enforcement and by law. This paper examines these two justifications. First, Shang Yang argues by appealing to historical imagination that the adoption of the rule of law became inevitable in the development of human history. In other words, he advocates the necessity of governance by law by speculating about the origin of the rule of law. Second, he seeks to justify governance by law ultimately by arguing that it is the best way to prevent the destruction of the entire human race(亂). In relation to Shang Yang’s view, it is important to notice that his justifications may have some horrifying implication: For instance, in line with his view, violence against the vast majority of people may be rationalized in order to prevent sociopolitical disorder and establish order. This paper aims to explain the formidable danger underlying this implication in Shang Yang’s thought. To do this right, Shang Yang’s view of law is juxtaposed with the thought of early Confucian thinkers, such as Xunzi(荀子).