한비자 법사상의 본질과 현대적 의미

Abstract

This paper focuses on the key elements and the ultimate goal of the legalism of Han Fei Zi. The ultimate aim of the politics he establishes, and the significance of the thought on ‘the rule of law’ as the method to obtain that aim, these are what we try to consider in this paper. In Han Fei Zi’s opinion, the foundations and methods of the domination are law (法), power (勢) and technique (術). That thought is the result of a constant worry about how to exclude the vague and positive expectation for the moral act of human, and how to stop the evils in reality. First of all, he thinks that the enactment of laws must be based on principles of timeliness, consistency and stability. The purpose of the law is to stop the evils, not to mete out punishment. Moreover it is not the measure of the king to satisfy his personal desires or to maintain his power. The law is to surmount the discrimination in reality and awaken people’s heart. The second element of the domination that Han Fei Zi proposes is ‘power’ (勢). In his opinion, the power is what determines the influence of some one’s thinking and activities, thus the king must have monopoly on it. It is also the decisive element for the success or failure of every work. Han Fei Zi claims that no matter how wise and intelligent a man is, he cannot gain any success if he has no power and position. Han Fei Zi also thoroughly explains the methods of the domination. Especially, he emphasizes on the technique (the stratagem) for controling the officials. Since he understands that the officials are who can easily put the king into peril. His thought is in fact based on the historical experience according to which the main cause of the collapse of the country is the very officials. The most important methods for controling the officials are reward and punishment. Reward and punishment must be fair and just, and their main purpose is to encourage the good and regulate the evil. In Han Fei Zi’s thought, the goal of the enforcement of the law is the adjustment to the country and the achievement of national prosperity and military power. Furthermore, about the object of that enforcement, he emphasizes that it must bring the justice to the whole people. It is the very basic spirit of the law in modern democracy. And his thought on the necessity of definite rules in that enforcement also has its important meaning. However, about the thoughts according to which all the domination power must be concentrated in the king only and the impact of the law does not include the king, it can be said that they have some problems concerning to the justice and fairness. But if we consider his diagnosis of the reasons of social chaos, and the concern about the resolutions of that chaos, we will understand that, about his attempt to restore the social order and bring the common good to all the people by means of rules and system, the significance of Han Fei Zi’s theory – even be seen from the current democratic viewpoint – is in no way trivial.