Extrême-Orient, Extrême-

Occident

Severity and lenience : Divination and law in early imperial China

Mark Csikszentmihalyi

Abstract
While the administration of justice and divination were not linked in the legal code itself, this does not mean the practices
themselves were unconnected. An examination of debates over the appropriateness of interpreting results arrived at through
technical procedures in both areas shows that by the Han these practices were conceptualized in similar ways. A concrete
example of this similarity is the influence of the duality of hard and pliant, central to milfoil divination, on early discussions of the
development of ethical judgement in a judicial setting.

Résumé
Sévérité et indulgence : divination et loi dans la Chine des débuts de l'Empire
Même si le rapport entre pratiques juridiques et divinatoires n'apparaît pas dans les codes légaux en tant que tels, ceci ne veut
pas dire qu'il n'existait entre elles aucun lien. Un examen des débats sur le bien-fondé des interprétations du résultat de
procédures techniques mises en oeuvre dans chaque domaine montre qu'à partir des Han ces pratiques étaient conçues selon
des modalités semblables. Un exemple concret de cette ressemblance réside dans l'impact exercé par l'opposition entre le
souple et le dur - centrale dans la divination par l'achillée - sur les premiers débats concernant la prise en compte de valeurs
éthiques dans le contexte judiciaire.

Citer ce document / Cite this document :

Csikszentmihalyi Mark. Severity and lenience : Divination and law in early imperial China. In: Extrême-Orient, Extrême-
Occident, 1999, n°21. Divination et rationalité en Chine ancienne. pp. 111-130.

doi : 10.3406/oroc.1999.1104

http://www.persee.fr/doc/oroc_0754-5010_1999_num_21_21_1104

Document généré le 28/09/2015

 "/

Extrême-Orient, Extrême-Occident 21 - 1999

Severity and lenience :

Divination and law in early imperial China

Mark Csikszentmihalyi l

The Qin legal code indicates that practitioners of law and divination occupied
separate spheres. When diviners (bu) are mentioned in the Qin statutes found at
Shuihudi near Yunmeng in Hubei Province, it is as a subclass of convicts, subject to
having their beards shaved and exempted from hard labor to work as bond servants in
the offices they once occupied 2. As far as may be determined, divination practice itself
was not regularly subject to legal regulation or consumer protection standards, nor were
diviners employed by the local administrators charged with applying laws to maintain
public order. While the administration of justice and divination were not linked in the
legal code itself, this does not mean the practices themselves were unconnected. One
connection is suggested by the proximity of the legal texts to the Books of Days (rishu)
prognostication texts also found at Shuihudi. Another similarity is that both the
provisions of a uniform legal code and the entries in manuals used to interpret
divination results were related by the necessity that they be interpreted to be applied to
specific cases. One artifact of today's reliance on written records to understand
divination and law in early China is that while many legal statutes and manuals for
reading signs are extant, information on the administration of justice and methods of
interpreting the manuals is sparse. This article will attempt to draw on diverse sources
to compare the interpretive aspect of these practices.
In order to make such a comparison, it will be useful to borrow a distinction from
an anthropological context. The distinction between the technical (or technological)
and the performative (or rhetorical) aspects of magic drawn by Stanley J. Tambiah will
allow us to differentiate the part of a practice that imitates « the logic of
technical/technological action » and the aspect that is « transparently rhetorical and
performative » 3. Taking a modern visit to the doctor as an example, the doctor's craft
consists of a number of technical aspects (e.g., visual examination, palpation,
measuring blood pressure) followed by a rhetorical aspect (an interpretation consisting
of diagnosis and advice or prescription.) The technical aspect exists to categorize and
label the patient's condition at a given time, while the rhetorical aspect has a normative
dimension that relates where the patient is to where the patient ought to be. In terms of
 Mark Csikszentmihalyi

the legal process, the technical phase would be the procedure by which a set of actions
are matched to a particular legal statute (if one indeed applies.) In divination according
to the Classic of Changes (Yijing), the technical phase would be the casting of milfoil
stalks and the lengthy process of calculating the applicable hexagram or hexagrams.
Just as a doctor might tell a patient to finally quit smoking regardless of what was
learned in the examination, however, the rhetorical phase of a practice requires the
performer to do more than pass along raw data, and involves the performer's use of
judgment. Judges in a legal proceeding may take extenuating circumstances into
account during the sentencing phase of a trial, and experts in casting the stalks may use
clues about the circumstances of clients into account when making their readings 4.
Whatever the relationship between the technical procedures in the application of law
and divination in early imperial China, their performance relied on a shared vocabulary
that derived from a common picture of the nature of a performer's judgment.
This examination of the role of interpretation in law and divination in early imperial
China begins with an examination of debates over interpretation in both areas,
specifically over whether the outcome of the technical process was absolute or
contingent. In early China, there were writers who believed that sentencing should not
be effected by exigencies, and that the rhetorical aspect of the administration of justice
should be entirely determined by the technical aspect. Similarly, in divination, many
writers militate against what must have been a popular view that fate was entirely
determined by the casting of milfoil stalks, and that there was no room for a person to
change his or her future, a view that again signalled a triumph of the technical over the
rhetorical. Both these absolutist positions were vociferously opposed by those who felt
that there was room for interpretation of the technical results, and that the performer's
judgment had to play a role.
By the Han, it was often held that law and divination required interpretation that
utilized the performer's judgment. This similarity between the two was a function of
shared cosmological assumptions. In the Han context, the assumption that all practices
were related as expressions of the same overarching Dao was increasingly accepted.
After the examination of the relationship between these technical and rhetorical aspects
of the administration of justice and divination, we will turn to an example of how the
vocabulary used to explain elements of the former practice was related to terms from
the latter. It will be seen that in the third and second centuries B.C.E., the ideal
combination of severity and lenience in administering justice was modeled on
principles common to the context of divination.

The administration of justice

Much of the discussion of early Chinese law is based on specific rules and
regulations, many of them found in newly excavated materials, that made up the legal
codes of early China. There is nothing wrong with this approach, and it makes quite a
bit of sense at the end of the twentieth century, a time when the « rule of law » is

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celebrated, to identify the administration of justice with the application of specific

laws. Yet from the point of view of some early Chinese writers, application of such
impartial standards was not the best way to guarantee a just society.
In the pre-imperial period, no less a figure than Confucius preferred leading the
people by virtue and rituals to leading them by edicts and punishments. His reason was
common to virtue ethicists everywhere : constraining behavior by fear of punishment
may keep people out of trouble, but will leave them without a « sense of shame
(chi) 5 ». Since Confucius 's ideal society maximized the development of virtue in
individuals, the uniform application of laws was condemned because it did not
encourage this development 6. He even gives an example of a case in which the
requirements of the legal system could cause a person to act contrary to virtue. When
told of a man named Gong, known for his uprightness (zhi), who testified that his own
father had stolen a sheep, Confucius observes :

Where I come from, being upright differs from this. A father would conceal such a thing
on behalf of his son, and a son would conceal it on behalf of his father. Uprightness is
found in this 7.

By ranking the cultivation of the virtue of filial piety (xiao) over the sanctity of private
property, Confucius is not denying that stealing is either unjust or injurious to social
order, but rather making the point that on the level of society, the best path to ending
such behavior is inculcating virtue. Because of the influence of this point of view, any
discussion of the administration of justice in early China cannot be reduced to the
content of legal codes.
This view was not the only one, as Confucius was indirectly criticized by legal
absolutists such as Han Fei (d. 233 B.C.E.) who made no secret of his disapproval of
special pleading. The Han Feizi argued that the consideration of exigencies disrupted
the government :

In the state of Chu there was a certain « Upright » Gong whose father stole a sheep, and
he reported this to a local official. The magistrate said that (Gong) was to be killed, for
although he was upright toward his ruler, he was crooked toward his father. Even though
(Gong) had reported it, it was he who was found guilty 8 !

Han Fei's indignation provides an implicit rebuttal to the version of the story told by
Confucius, and the two versions of the story represent two poles of the debate about
character development and legal exigencies in pre-imperial China. Confucius 's notion
of justice was predicated on the creation in all individuals of a set of virtues that were
more reliable than following rules, while Han Fei's was based on the idea that the
application of rules should be blind to exigencies of relationship and situation.
Following the short-lived triumph of the Qin, the Han faced the difficult task of
developing a new means of administering justice over a unified and expanded empire.

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The Qin code strongly influenced the policies of the Han, as did the absolutist theory
of Han Fei that informed it. At the same time, the Han court was also sensitive to the
concerns of Confucius that a reliance on punishment would neutralize people's ability
to develop individual moral sensibilities. The Han's dependence on the Qin legal code
forced even those who advocated the cultivation of the virtues to find a way to integrate
the rule of law with the cultivation of the virtues. So it was that in 66 B.C.E., Emperor
Huan sought to give Confucius 's ethical ideal legal reality by issuing the following
edict :

The closeness of parent and child, the way of husband and wife, are matters of Heaven-
given nature. Although a person (in such a relationship) might have problems and bad
fortune, nevertheless that person would sacrifice life itself to sustain the other (member
of the relationship). Their minds are united in their mutual sincere caring, and in this
sense are the epitome of benevolence and kindness. Who could possibly oppose such a
thing?
From this point forward, a child who masterminds the concealment of parents, a wife
who conceals her husband, a grandchild who conceals a grandparent - none will be
brought to trial. If a parent conceals a child, a husband conceals a wife, or a grandparent
conceals a grandchild, and (the concealed party is) found guilty of a capital crime, the
case (against the concealing party) will all be sent up to the Commandant of Justice
(tingwei) for a hearing 9.

The edict ensures that the family relationships held sacrosanct by Confucius were in
this way the object of a system that nested authority on the levels of : 1) prefecture, 2)
commandery or principality, and 3) capital. These three tiers of authority operated as
successive checks on the administration of the legal code. At the regional level, the
Grand Administrator (taishou) theoretically had the power to review the decisions of
the prefects (ling) and chiefs (zhang) at the level of the prefecture. Emperor Huan's
edict referred to the overarching power of the Commandant of Justice to resolve
problems with the decisions of the Grand Administrators, and guaranteed that cases in
which people are convicted of harboring their own close relatives would be subject to
judicial review 10. This is an instance of an attempt to institutionalize the relational
sense of morality associated with Confucius in the law itself.
Implicit in this system of checks is the assumption that the highest officials are
better able to balance the imperative to apply the law against the need to consider
exigencies. This assumption, that the Commandant of Justice, earning fully 2000
bushels, would be better able to balance these goods than a prefectural governor, who
earned from 300 to 1000 bushels, reflects the notion that it was the self-cultivation of
virtues of the élite bureaucrats that put them in a unique position to make such
decisions. This was the type of official that the Han statesman Jia Yi (200-168 B.C.E.)
had earlier sought to exempt from the very penalties they were charged with applying,
because it is a characteristic of human beings that « when the ruler treats [such a

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minister] with an honest sense of shame and in accordance with ritual and social
obligations, then the minister will repay his superior by acting with integrity n ». Jia
saw the rites as the system that should regulate the behavior of those at the top level of
government, and the law as the system that should regulate the behavior of everyone
else. Consequently, the Commandant of Justice was seen to be more likely to place the
appropriate weight on exigencies arising from close relationships in keeping with a
robust description of justice that allowed for the goal of self-cultivation of the virtues.
At the time of the edict, Emperor Huan's longstanding Commandant of Justice was
Yu Dingguo, a man who epitomized this attention to the intersection between the need
to cultivate virtues and the authority of the rule of law. Yu was known for taking just
such considerations into account. The Honshu notes his « efforts on behalf of widows
and widowers in mourning. When guilt was in doubt, he followed the course of
leniency, applying his careful and circumspect mind 12 ». Yu learned this kind of
behavior from his father, who worked in a bureau in charge of criminal law under
Grand Administrator of Donghai Commandery. The case that defined the elder Yu's
career had been the defense of a woman who had been falsely accused of murdering
her mother-in-law. After investigating the case, the elder Yu became convinced of her
innocence based on her ten years of filially pious behavior toward her mother-in-law.
The Prefect was not convinced, executed the woman, triggering both the elder Yu's
resignation and three years of drought. The next Prefect had a divination performed to
find out the reason for the drought. When an ox was ritually sacrificed at the grave of
the executed woman, it began to rain. The Yu's were exactly the type of official that
Emperor Huan wanted to have overseeing cases at the intersection of law and virtue,
and this is what his edict set out to accomplish.
The story of the unjust execution provides a rare example of the use of divination
concerning a legal matter. To understand why a diviner was called in, let us
momentarily bracket the discussion of law, and turn to the place of divination in the
Han world.

Divination and Han cosmology

The way in which divination could aid the administration of justice in the case of
Yu Dingguo's father illustrates the way that, in the Han, law and divination were seen
to operate in the same moral universe. This assumption grew out of the totalistic view
of the cosmos that had become current in the Han, one in which a variety of techniques
were efficacious because they were constituents of an overarching and ineffable Way
(dao) 13.
The backdrop against which this view must be understood is the change in
cosmology that took place in the fourth through first centuries B.C.E. In terms derived
from other traditions, this period saw the conception of a universe governed by
anthropomorphic deities increasingly integrated into a naturalistic view of the cosmos.
While the Shang addressed their ancestors under the collective name Shangdi, and the

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Zhou reportedly perceived the workings of a personified tian all around them, writers
in the fourth century saw an increasingly impersonal tian and explained changes in the
observable world as the effect of one object on another that was related to it according
to a set of correlative schemata 14. In the case of Chinese divination practice, this
entailed a move from divination in the strict sense (i.e., practice that assumes a divinity)
to omenology.
This distinction does not mean that the two conceptions of the cosmos were
mutually exclusive. The same method of divination could be explained in very different
ways depending on which set of cosmological assumptions was being adopted. In the
manner of a technology that continues to be used even while explanations of what
makes it work changed, the technical aspects of prediction (a term I will use to
encompass both divining and reading omens) remained relatively constant while the
general understanding of the basis of its efficacy varied.
Examples of predictions that assumed the agency of anthropomorphic deities are
the late fourth century divinations found at Baoshan. These divinations were addressed
to such figures as Great Unity (Taiyi), a set of celestial officials including the Master of
Fate (Siming), spirits of rivers and mountains, doorways, dwellings and directions 15.
The idea of invoking a particular deity to assure or request good fortune was
characteristic of an anthropomorphic view of the cosmos, and this view persisted in
China through the Han and continues in the present day.
Coexisting with this anthropomorphic view of the world was a naturalistic
worldview that posited that human actions result in potentially predictable responses.
This view received its earliest full articulation in the « Tianlun », chapter 17 of the
Xunzi. In that text, the sage could have foreknowledge of the reactions of tian : « If one
cultivates the Way wholeheartedly, then tian cannot send down misfortune 16. » While
it is possible to describe this view as naturalistic, the absence of a rigid distinction
between fact and value meant that the idea of nature governed by impersonal cause and
effect inherent in this conception of tian also contained moral elements 17. A good
illustration of this is the story of Yu Dingguo related earlier, in which a miscarriage of
justice brings catastophes from tian.
This change in cosmological views precipitated a debate about whether prediction
was absolute or contingent. In a naturalistic view, the result of the casting of milfoil
stalks was an expression of the potential inherent in the conjunction of an individual
and the world at a particular moment in time. Michael Loewe has described the
rationale behind the Han practice of casting of stalks according to the Classic of
Changes in this way :

The throw that resulted in the production of any one hexagram, with or without its
movement into the next, should not be regarded as a matter of chance ; it took shape as
an inherent and inescapable element of a particular moment of time, or of a particular
moment in the cycle 18.

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As such, the individual's state at the time of a casting, including the moral quality of
his or her actions, determined the results. The stalks were part of the natural world, and
so were sensitive to potentials that changed over time. To the extent that such a
procedure permitted a forecast, it was only a function of the capacity of the stalks to
comprehensively monitor current conditions, gaining information to which the
principles of orderly change could be applied. The role of the expert in casting stalks
was not so much to foretell the future, but more to diagnose the present and counsel
moral action as a means of preventing bad outcomes in the future 19.
The idea of seeking the approval of a deity or deities for a course of action or
leaving one's lifespan in the hands of a « Master of Fate » may then be seen as entailing
a different idea of fate than the one found in such a naturalistic system. In the latter, the
future is not subject to the arbitrariness of a responding deity, but is instead enmeshed
in the alternations of the natural system. The idea of alternation is seen clearly in a set
of third century comments on the passage « Misfortune is what good fortune rests upon,
and good fortune is what misfortune subsides into », found in the Laozi, traditionally
numbered as chapter 55 of that text. The Han Feizi commentary to this passage
explains the mechanism behind the alternation of good and bad fortune :

When people have misfortune, fear rises in their minds. When fear rises in their minds,
then their actions will be upright. When their actions are upright, then their thoughts will
be well-considered. If their thoughts are well-considered, then they will grasp the
principles of affairs. If their actions are upright, then they will not suffer misfortune and
injury. If they do not suffer misfortune and injury, then they will live out their natural
span. If they grasp the principles of affairs, then they will be certain to succeed. If they
live out their natural span, then they will be preserved and long-lived. If they are certain
to succeed, then they will be rich and noble. To be preserved, long-lived, rich and noble
is called « good fortune, » and since good fortune is based on having misfortune, [the
Laozi] says : « Misfortune is what good fortune rests upon, and good fortune is what
misfortune subsides into 20. »

Han Feizi explains the alternation not as the result of the intentions of a cosmic
lawgiver but rather as a natural result of uprightness (duanzhi) leading to good fortune,
combined with wickedness leading to bad fortune. This is combined with the idea that
humans respond to fear by reforming their behavior to show how misfortune leads to
upright actions (and how good fortune results in wicked (xiepi) actions), proving the
inevitability of the reversal of fortune spoken of in the Laozi. In this explanation, good
and bad fortune are merely descriptive of the extreme values of the sinusoidal wave that
describes an inevitable response to changing circumstances 21.
From this perspective, the prediction is best seen as an interpretation of natural
signs that results in an omen or a « natural diagnosis » of an individual at a particular
time. It does not tell one's fate because it is possible that once presented with this
diagnosis, actions may be taken to address its causes and alter the ultimate outcome.

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This view is expressed by the sage-king Tang in the explanation of the same Laozi
passage in the third century B.C.E. compendium Spring and Autumn Annals of Master
Lu [Liishi chunqiu] :

In the time of Cheng Tang, stalks of grain began to grow in the courtyard. They began
to grow at dusk and by dawn they had grown large enough to circle one's arms around.
His officials consulted a diviner to find out why this had happened. Tang sent away the
diviner, saying :
« I have heard it said that "auspicious signs precede good fortune". If you receive
auspicious signs but your actions are not good then good fortune will not arrive.
"Inauspicious signs procède misfortune." If you receive inauspicious signs but your
actions are good, then misfortune will not arrive. »
From then on, he rose early and retired late, asked after the sick and mourned the dead,
and worked to calm and pacify the common people. In three days, the grain died.
Therefore, it is said that : « Misfortune is what good fortune rests upon, and good
fortune is what misfortune subsides into 22. »

The sage-king's view is closely tied to a naturalistic view of the universe in which good
actions are rewarded. These third century B.C.E. texts have a clear precedent in the
Mozi, which makes the point that a position that holds that punishment and reward are
fated would undermine people's motives for being filially pious and ritually proper 23.
This is not so much a condemnation of prediction as a critique of the popular tendency
to consider forecasts unalterable.
Many Han accounts specifically criticize the idea that the outcomes of casting
milfoil shells or heating tortoise plastrons were the expression of the will of a deity.
Wang Chong (137-192 CE.) marshaled a myriad of arguments against two hypotheses
that his contemporaries used to explain the efficacy of prediction by stalks and shells :
1) that Heaven and Earth actually answer the questions of diviners via physical changes
in tortoise shell and milfoil stalks, and 2) that the qi (« life, » « energy ») of Heaven and
Earth inside a person projects answers through the « inspired » manipulation of the
media of prediction. Wang argued instead that predictions reflect the individual's
incipient fortune through the resonance of like categories :

[...] [T] hus it appears that those who divine by stalks and shells also must have good
and bad fortune. Some of those who have discussed it say that (good and bad fortune)
result from the good or bad actions of this individual, so that luck and agreement
resonate and turn up with goodness, and disasters and freaks arrive following fault.
Good and bad governance is brought about by goodness and fault, and I suspect that it
is not the case that tian and Earth purposively respond. When a fortunate person drills a
tortoise, the person finds good signs, while a person with poor fortune casts the milfoil
and receives bad numbers M.

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Rejecting an anthropomorphic understanding of tian, Wang proposes a solution that

does not entail volition on the part of tian and Earth. By contrast, Wang Fu (78-163
CE.) accepts an anthropomorphic view, but does not believe that using stalks and
shells is a means to access the deities :

When it comes to the spirits of tian and Earth such as the Year Star (Taisui), Feng Long,
Gou Chen, and General Taiyin, these are officials of tian and not meant to be served by
ordinary people. The reason why tian has these spirits is that they all benefit creatures
by fostering the completion of yin and yang, just as human governance has provincial
magistrates, prefects and chiefs. If you approach them, what reason would they have for
anger ? If you turn your back to them, what reason would they have for displeasure ?
The ways of the gentleman and the commoner run close together, it is not right for them
to rely on each other. So much the more with the veneration of spirits whose sense of
propriety is different from that of people. How could it be appropriate to have
expectations of them ** ?

Wang Fu accepts the presence of such « officials of tian, » but says they are too busy
keeping things running to answer the questions of ordinary people. Both Wang's agree
that prediction does not elicit responses from individual deities, even while they appear
to disagree on the issue of whether such deities exist. As such, while their views of the
cosmos may differ, both their understandings of the way in which methods of
prediction function were naturalistic in the sense described above.
Since predictions were not seen as the result of deities operating « outside » the
system, the naturalistic schemata of the Han held that human behavior and the
inevitable response to it were both part of the same system. This perspective on Han
cosmology as an integrative system explains how, in the example of the case handled
by Yu Dingguo's father, the roles of the administrator of justice and the diviner were
related. The injustice of the initial execution led to exactly the set of natural omens that
the diviner was able to diagnose as proof of the victim's innocence. The « Yueling »
section of the Spring and Autumn Annals of Master Lu gives an earlier example of the
idea that such an unjust execution might bring such a disaster : « Execution must be
appropriate, with no perversion (of fact), or else one will face calamity 26. » Thus, the
behavior of the accused, the judgment of the magistrate, and the effects of both in the
natural world, were all part of the same system. Accurate human observation of that
system may provide information that, if interpreted by a person possessing a sagacious
understanding of the regular outcomes of moral and immoral behavior, would be
sufficient to decide cases justly. Unfortunately, in the case examined above it was the
lower official who had this understanding, and not his superior, and this gave rise to the
miscarriage of justice and the resulting bad omens. Because these omens arose in a
natural world that reacts in an impartial manner, the skilled manipulator of the stalks,
acting as a post facto judge, was able to confirm that Yu Dingguo's father had, in fact,
been correct.

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The fact that, in Yu's case, law and divination worked within the same system
indicates that their practice was bound by shared cosmological assumptions in the Han.
The question of when this link began is an interesting one, and one solution that refers
back to the story of Upright Gong introduced above, is offered below.

Combining the virtues

Two important issues in Han law were introduced earlier : the attempt to adapt the
law to avoid conflicts of law and morality, and the need to remedy misapplications of
penal law. Both reflect the need to balance ethical imperatives with the application of
a uniform legal code, and, characteristically in early China, ground hopes for the
possibility of integrating ethical concerns with the need for an ordered polity in the
cultivated judgment of an enlightened individual. The issue of how, specifically, such
individuals were to combine severity and lenience, is a more complicated one. How,
exactly, did a judicial authority develop the ability to judge in this way ?
While there can be no uniform answer to this question, one of the most developed
answers is offered in a recently discovered text called the Five Kinds of Action
(Wuxing). This text expresses the development of severity and lenience as a function of
the development of the virtues of righteousness (yi) and benevolence (ren) in the
context of making judgments. These two virtues should ideally be maximized in the
style of the mutual complementarity of yin and yang. While the edict of emperor Huan
attempted to bring the virtues into the law, the approach in the Five Kinds of Action is
to bring the dual imperatives that one must act with public-mindedness and that one
must exercise compassion into the discourse on the development of virtues.
The « text » itself actually is three different entities, two versions of a « classic »
found at Mawangdui and Guodian, and a partial « explanation » of the former classic
also found at Mawangdui. Dates of these texts are not known with certainty, but the
date of 300 B.C.E. has been offered as a terminus ad quern for the Guodian canon, and
168 B.C.E. is a firmly established terminus ad quern for the Mawangdui texts 27.
While the authorship of the Five Kinds of Action texts is uncertain, there are several
reasons to associate the materials in the Guodian find with Zi Si, a figure who has at
times been identified as Confucius 's grandson 28. This substantiates the identification,
first made by Pang Pu, of the Five Kinds of Action texts as the subject of a critical
account of a « wuxing theory » in the third century B.C.E. text Xunzi 29. On this basis,
the Five Kinds of Action was associated with the « school » of Mencius and Zi Si. Yet
it is also the case that the Han Feizi locates Mencius and Zi Si in two separate
categories 30, and that some scholars have found differences between their
perspectives 31. In light of these considerations, it is possible that Xunzi's reference to
a Zi Si and Mencius grouping might indicate teacher-student or classic-explanation
pairing along the lines of the interpretation that Anna Seidel has suggested for the
pairing Huang Lao 32. This scenario might imply that the classic of the Five Kinds of
Action was the work of Zi Si, while the explanation could be attributed to Mencius.

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The Five Kinds of Action contains an excellent technical discussion of the way an
individual engaged in self-cultivation might, in a practical setting, adjust the need to
apply the law according to a relational sense of morality outlined above. The Five
Kinds of Action grounds this process in the cultivation of two of the virtues central to
Confucius 's ethical picture, righteousness and benevolence. The twentieth section of
the Mawangdui Five Kinds of Action classic is dedicated to the way one applies
benevolence and righteousness in a decision-making context. The two virtues each
have a method (fang) for making decisions, « selectiveness (jian) is the method of
righteousness and special consideration (ni) is the method of benevolence 33 ».
The first of these two methods, selectiveness, is elaborated in the Five Kinds of
Action. In the Guodian text's discussion of the application of righteousness,
selectiveness is defined : « Avoiding injury to the great Way on account of little ways
- this is selectiveness 34. » The Mawangdui commentary makes it clear that
selectiveness is a version of the unmediated « uprightness » of Gong in the Analects :
« Even if it is one's kin, one still brandishes punishment ; this is selectiveness 35. » The
explanation of the classic's definition of selectiveness fleshes out the « method of
righteousness » :

« To avoid injury to the great Way on account of little ways ; this is selectiveness. »
Selectiveness is avoiding injuring great loves on account of little loves or injuring great
righteousnesses on account of little righteousnesses. « If one sees it alive, one does not
eat its corpse. » Even if it is one's kin, one still brandishes punishment - this is
selectiveness 36.

The three independent illustrations of selectiveness in the passage all provide insight
into this method. The first - comparing selectiveness to caring for another -
emphasizes that one may have multiple allegiances, but that one must maintain
priorities among them. The allusion to the Mencius story of the King Xuan of Qi and
the ox in this passage shows that the selectiveness depends on locating oneself in a
position from which one cannot be moved by sympathy, thereby avoiding the reaction
of King Xuan to the human qualities of the ox. A similar distancing is indicated by the
third line of the explanation, in which selectiveness is seen as being immune to
considerations of kinship. Selectiveness, then, is akin to impartiality in identifying the
relevant law and choosing the appropriate punishment. Section 21 of the Guodian text
associates selectiveness with the severe punishment of a significant crime 37. The need
to apply legal penalties in a judicial setting is then an aspect of the virtue of
righteousness.
By contrast, special consideration is associated in the Guodian text of Five Kinds
of Action not with severity in punishment, but with pardoning a trivial crime 38. The
term « special consideration » literally means to conceal, and is used in the latter sense
to describe the « special consideration » a parent gives a guilty child by concealing
them. This usage of the term is seen in the first century B.C.E. text Discourses on Salt

121
Mark Csikszentmihalyi

and Iron (Yantielun) : « (The attitude of) parents toward their child, even if (the
children) are guilty (the parents) will still conceal (ni) them. How could they desire to
testify to their guilt 39 ? » The impulse to treat a stranger with the partiality reserved for
a family member is at the core of the « method of benevolence ». This is the reaction
that King Xuan has, when he says of the ox : « It was as if he were without guilt, yet
was being led to the place of execution 40. » In this sense, the impulse to be partial
toward the accused, to sympathize with them in a way that is blind to their faults, is the
essence of special consideration.
The Five Kinds of Action holds that a gentleman must exercise both selectiveness
and special consideration, two qualities that at first may seem to imply contradictory
types of action. The two ways of acting are likened to two other qualities in tension :
« Hardness is a method of righteousness, and pliancy is a method of benevolence 41. »
In turn, the relationship between hardness and pliancy has been seen to be indicative of
yinyang thought. Kobayashi Shinmei has pointed out that in several texts now thought
to date from the third and second centuries B.C.E., yin and yang aie associated with the
terms « pliant » (rou) and « hard » (gang), which are related to each other as parts of a
cycle in the Laozi, the Documents, and other sources 42.
In the Han, the relationship between divination and these two virtues important in
the administration of justice may be seen in texts related to the Classic of Changes that
explicitly relate the two. One such text is the Explanations of the Trigrams (Shuogua)
commentary to the Classic of Changes :

They observed the alternations of yin and yang and established the eight trigrams. When
this manifested itself in « pliant » and « hard, » the lines were produced... [The ancient
sages] established Heaven's Way and it was called « yin » and « yang, » established
Earth's Way and called it « pliant » and « hard » and established the human way and
called it « benevolent » and « righteous » 43.

The terminology used in this passage is particular to the Classic of Changes, which
centers on sixty-four hexagrams each with a unique combination of solid (yang) or
broken (yin) lines. It homologizes yin to pliancy and benevolence, and yang to hardness
and righteousness44. The Five Kinds of Action may well be the earliest example of
benevolence and righteousness being considered the equivalent of yin and yang in the
human realm.
The need for a combination of benevolence and righteousness is an idea developed
at greater length in several Han texts. The correlation of benevolence and righteousness
with yin and yang is also found in the work of Lu Jia (d. 178 B.C.E.) 45, and Han Ying
(fl. 150 B.C.E.) applies the need for both virtues to Confucius's case of Upright Gong.
In the Hanshi waijuan, Han makes the contrast between the two virtues explicit :

If one conceals something on behalf of one's father, one's righteousness has not reached
the level of « uprightness ». If the ruler executes the unrighteous then benevolence has

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 Severity and lenience : Divination and law in early imperial China

not reached the level of « basic care ». Although it may go against benevolence and
injure righteousness, the law (fa) is in the middle of these extremes 46.

This example is notable for the fact that the law, in an abstract sense, is seen to ideally
combine these two otherwise competing virtues. This idea of law is clearly a Han
Confucian alternative to the absolutist conception of law seen above in the Han Feizi.
That the virtues needed to be combined is one of the overarching themes of the Five
Kinds ofAction. That text's organization in terms of fivefold processes is an expression
of its concern with integrating the four virtues that Mencius thought constituted the
moral mind into a fifth, that of sagacity (sheng). The ability to harmonize these virtues
was seen to be progressing a step beyond what is merely « goodness » and following
the « human Way, » to « virtue » and following « tian's Way » 47. The harmonies
outlined in the Five Kinds of Action may be likened to the thesis of the « unity of the
virtues » found in the writings of some early Greek thinkers 48.
A similar conception of the virtues culminating in a harmony that derives from tian
is also present in the postscript of the section on the « Six Attainments » (Liuyi) in the
bibliographical inventory of the first century CE. History of the Han (Honshu). The
postscript lists the way that five of the six canonical texts associated with Confucius are
each associated with a virtue :

Of the texts of the « Six Attainments, » the Music [Yue] may be used to harmonize the
spirits, and is the standard of benevolence. The Poetry may be used to normalize speech,
and is the application of righteousness. The Ritual may be used to clarify the body ;
those who understand it are clear in their representations and are never reprimanded.
The Documents may be used to listen broadly, and is a technique of wisdom. The Spring
and Autumn Annals may be used to adjudicate affairs ; it is the tally of trustworthiness.
These five, generally speaking, are called the way of the five constants 49.

In this passage, the five constants are related to the five virtues. It is significant that the
Classic of Changes is not correlated to a particular virtue, and is instead called the
« source » of the virtues. This places the Classic of Changes in a privileged position
relative to the other classics, in the same way that the pliant and hard lines of its
hexagrams were seen as the underlying method of balancing the virtues of benevolence
and righteousness in the Five Kinds of Action. The relationship between the totalistic
cosmology associated with this ancient divination text and the moral teaching of the
other classics was parallel to the sage's ability to combine the virtues derived from
those classics.
The Five Kinds of Action interpreted the Confucian virtues in the light of the
totalizing perspective of the Classic of Changes. In the Five Kinds ofAction, the virtues
came to be naturalized into an image of the cosmos in which judicious combination of
benevolence and righteousness produced the best application of the law. The idea of the
virtues in a mutually complementary relationship was then developed more completely
in the full-fledged correlative cosmology of the Han.

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Mark Csikszentmihalyi

Conclusion

Whatever the origin of laws, their application requires interpretation, and

occasionally the reconciliation of the letter of the law with conflicting moral intuitions.
These issues became especially relevant in the Han dynasty, when the legal code
inherited from the Qin came under criticism for its rigid and arbitrary nature. It is in
this area that Han writers had recourse to the concept of combining severity and
lenience, the methods of righteousness and benevolence, that had been developed by
the authors of the Five Kinds of Action. This combination fit in with an understanding
of the cosmos that allowed them to arbitrate between the conflicting pulls of different
virtues, an understanding that also informed the interpretation of divination results.
Severity and lenience were internalized by the just sage in the same way that yin and
yang combined to comprise tian.
This is the essence of the rather different reading of the story of Upright Gong
found in the third century B.C.E. text Spring and Autumn Annals of Master Lu. There,
Gong reports his father, who is sentenced to death. Gong then intervenes and asks to
substitute for his father.

When (Gong) was about to be executed, he told the official :

« My father stole a sheep and I reported it, is this not trustworthiness ? When he was
sentenced to death, I took his place, is this not filial piety ? »
The king [of Chu] then did not execute him 50.

The king, in this example, was clearly trying to be the kind of judge that Yu Dingguo
would later become. He was able to diagnose that Gong's balance of the two virtues
was the proper medium - the equivalent of the healthy balance of yin and yang in the
body. It is in this latter sense that the ruler of « luminous intelligence » was comparable
in his role to the diviner, reading the alternations of fortune in the « hard » and
« pliant » lines of the hexagrams.

Notes

The author would like to thank Karine Chemla, Donald Harper, and Marc Kalinowski
for their comments on an earlier draft of this article. References to the Honshu are to
the 1962 Zhonghua punctuated edition published in Beijing. References to political
and philosophical essays such as Han Feizi jijie, Lunyujishi, and Xunzijijie followed
by the abbreviation ZZJC are to the 1986 eight volume Zhonghua reprint of the Zhuzi
jicheng edition published in Beijing. References to Zhouyi zhengyi and Chunqiu
Gongyangzhuan zhushu followed by the abbreviation SSJZS are to the 1991 Zhonghua
reprint of the Shisanjing zhushu published in Beijing.
This exemption had been rescinded by the time the Shuihudi slips were written circa
217 B.C.E. (Hulsewé, 1985, p. 176).

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 Severity and lenience : Divination and law in early imperial China

3. Tambiah, 1990, p. 82-83.

4. Several examples of flexibility in sentencing appear below. An excellent example of
flexibility in the context of divination may be found in Richard J. Smith's discussion
of « Spirit Mediums and Spirit Messages » (1991, p. 243). Smith tells the story of a
qian (spirit stalk) diviner approached by a woman who says her problem is that her
husband has a concubine. He asks her if she has children and if her husband gives her
money. When she answers yes to both questions, he recommends that she not separate
from her husband.
5. Analects 2.3 ; Lunyujishi 3.67.
6. Philip J. Ivanhoe describes this as a form of « character consequentialism » ; see
Ivanhoe, 1991.
7. Analects 13.18 ; Lunyujishi 27.924-6.
8. Han Feizi jijie 49, ZZJC 19.344-5.
9. Honshu 8.251. Vankeerberghen (forthcoming) discusses the intergenerational
asymmetry of the punishments. .
10. Bielenstein, 1980, p. 18-19 et 182, note 14.
11. Honshu 48.2257.
12. Honshu 71.3043. Yu was also a student of the Spring and Autumn Annals (Chunqiu),
a text whose principles were applied to Han jurisprudence (see Queen, 1996, p. 115-
181).
13. The conceptual basis of this model is outlined in Csikszentmihalyi, 1997.
14. The character tian is usually translated as « Heaven », but to emphasize the shift in its
meaning it will be here left untranslated. Robert Eno has examined some of the
changes in the usage of tian in the Confucian school (1990).
15. Li Ling, 1993, p. 268-271. Many of these same deities also appear in the « Jiuge »
section of the Chuci as well as the slips found at Wangshan and Tianxingguan.
16. Xunzi jijie, ZZJC 11.205.
17. It is still common to assume that « is » and « ought » are always ontologically distinct,
perhaps due to the rapprochement between science and religion (Shapin, 1996, p. 135-
142). This distinction is not found in Han discussions of nature. '
18. Loewe, 1975, p. 50.
19. Moral knowledge could then be seen as the general principles of behavior that could
be derived from the records of past changes coupled with the resulting outcomes of
those changes. A related point is made by K. C. Chang about the origins of Chinese
historiography (1983, p. 88-94). In the synthetic atmosphere of the late Warring States
and Qin-Han periods, moral knowledge was accessible through the study of such
precedents. This was precisely the approach, reading history as a source for
information about moral precedents, taken by the writers of some commentaries to the
Spring and Autumn Annals.
20. Han Feizi jijie 20, ZZJC 10.99.
21. The frequency of this wave is what is partly determined by human agency, although it
may be safely said to « not exceed three generations » (buguo sondai). A less
anachronistic metaphor may be that good and bad fortune are « interwoven as the

125
 Mark Csikszentmihalyi

strands in a rope », an expression that follows the same Laozi quotation in the
Heguanzi (SBBY 12.4a).
22. « Zhile » chapter, ZZJC 6.60. ,
23. See « Feiming », Mozi xiangu, ZZJC 9. 1 67.
24. « Bushi », from section 70 of Lunheng, ZZJC 236.
25. « Bulie », from section 25 of Qianfulun, ZZJC 25. 125-6.
26. « Zhongqiu », Lushi chunqiu, ZZJC 8.75.
27. On the generic distinction between « classic » (jing) and « explanation » (shuo), see
Ikeda, 1993, p. 48-54. For the dating of the Mawangdui texts, see Csikszentmihalyi,
1998, and for that of the Guodian canon, see Cui, 1997.
28. The first reason for this association is the connection of other texts in the cache with
Zi Si. One text, Duke Mu of Lu asked Zi Si (Lu Mugong wen Zi Si), is a narrative
illustrating the integrity of Zi Si ; another, Black Robes (Ziyi), is similar to chapter 33
of the Record of Ritual (Liji), one of the chapters attributed to Zi Si by Shen Yue (441-
513 C.E.) in the History of the Sui (Suishu). Another reason is the dating of the text,
which places its composition most likely in the fourth century B.C.E. Biographical
accounts relate that Kong Ji studied with Confucius 'sdisciple Zeng Can, and went on
to teach Duke Mu of the state of Lu. Duke Mu probably reigned from 415 to 383
B.C.E., and Confucius is thought to have died in 479, so it is possible to project that
Kong Ji was bom in the early to mid-400's and lived into the 300's. Finally, the
association of a theory of the « Five phases » with Zi Si and Mencius in the Xunzi (see
below) may bear on the Guodian text of the same name, despite the fact that the
Guodian cache appears to predate the writings of Mencius.
29. See Pang, 1980. That account is found in chapter six of the Xunzi, a chapter that
criticizes several theories. The chapter claims that «Zi Si sang it and Mencius
provided harmony for it », accusing the two writers of concocting a « wuxing theory »
that they falsely associated with Confucius (Xunzi jijie, ZZJC 3.60).
30. Han Feizi jijie 50, ZZJC 19.35 1 .
31. Takeuchi Yoshio ( 1 922, 663) saw the important distinction between Zi Si and Mencius
as their differing reliance on the Classic of Changes. While both used the Classic of
Poetry (Shijing) and Documents (Shu), Mencius also drew on the Spring and Autumn
Annals while texts associated with Zi Si draw heavily on the Classic of Changes.
32. Seidel, 1969.
33. Ikeda, 1993, p. 419.
34. Ikeda, 1993, p. 318. The Guodian classic has jian \ which also has the meaning of « to
select » (Jingmenshi bowuguan, 1998, p. 150). At the end of chapter two of the Xunzi,
in a passage that is also in classic-explanation form, the explanation explains the
passage : « one's blood and qi are not weakened when one is settled or retired, » with
the phrase « this is selectiveness of principles (jianli) ». Knoblock distinguishes
between this reading and his own rendering « restrained by the natural order »
(Knoblock, 1988, p. 280, note 81), the latter having the virtue of stressing the self-
discipline that both the Xunzi and Five Kinds of Action usages imply. See Xunzi jijie,
ZZJC 1.21.
35. Ikeda, 1993, p. 419.

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 Severity and lenience : Divination and law in early imperial China

36. Ibid. The phrase « If one sees it alive, one does not eat its corpse », is from Mencius
1A7 ; see Mengzi zhengyi, ZZJC 1.50.
37. Jingmenshi bowuguan, 1998, p. 150.
38. Ibid.
39. Yantielun 57, ZZJC 59, paraphrasing the second century B.C.E. Gongyang
commentary to the Spring and Autumn Annals for the 15th year of Duke Wen ; see
Chunqiu Gongyangzhuan zhushu, SSJZS 14.2274. The Gongyang version does not use
ni.
40. Mengzi zhengyi, ZZJC 1.49.
41. Ikeda, 1993, p. 419.
42. Kobayashi, 1955.
43. Zhouyi zhengyi, SSJZS 9.94-95.
44. This is a particularly significant connection in terms of the Five Kinds of Action text,
in light of Takeuchi's arguments about the importance of the Classic of Changes for Zi
Si. A similar set of homologies may be seen in the second century B.C.E. Mawangdui
Classic of Changes text called Essentials (Yao) ; see Shaughnessy, 1996, p. 243.
45. Csikszentmihalyi, 1997, p. 63, note 44.
46. Hanshi waizhuan 4. Compare Hightower, 1952, p. 143-144.
47. See Csikszentmihalyi, 1997, p. 61-64.
48. These unities are unities of the virtues in the strong sense, that is, they hold that you
cannot truly have any virtue unless you have them all. This text would then contradict
Alasdair Maclntyre's statement that « Confucianism denies [a Western] type of strong
thesis about the unity of the virtues » (Maclntyre, 1991, p. 106).
49. Honshu 30.1723.
50. «Dangwu», Liishi chunqiu, ZZJC 11.110. This story is followed by Confucius's
condemnation of the brand of « trustworthiness » exhibited by Upright Gong. The
writer of that chapter of the Spring and Autumn Annals of Master LU, however,
condemns Gong for a « trustworthiness which is inferior to not being trustworthy »,
reflecting the reality that by the third century B.C.E., the idea that there existed a
counterweight to filial piety was even accepted by those who tried to hew the
Confucian line.

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