Henrique Schneider

The Rule of law often is considered to be a criterion for legal positivistic thinking. According to this maxim: can the Chinese Legalistic thinking of Shang Yang and Han Fei be considered as a sort of Legal Positivism? There are many positions shared by both, like the idea of a positive law or the binding character of the law despite of person and sympathies or even the concept of the law as a system. There is, however a important difference between them: legal positivism can be best described as “rule of the law” whereas Legalism best fits the idea of “rule by the law”, since there were no secondary rules stating how the legislator had to make the law. On the other hand, the strongest approach to draw a parallel between both is the commonly shared concept of realism of the law as social construction.

This paper explores the relation of order and welfare for Han Fei's philosophy. It will be claimed that the Legalist did indeed show concern for the overall quality of life of society, claiming that his model state would lead to a substantial increase for the individual's welfare. On the other hand, although he acknowledges (and cares) for these positive consequences, Han Fei does not attach any value for legitimizing the system he proposes to them. Even if there were any value attached to benefitting the people, it would be indirect. For Han Fei, a welfare does not legitimize the system but is a consequence of the ‘right system’. He is not concerned with letting the people live better for the sake of the people, but rather with having healthy and motivated subjects, as these are at the same time consequences of, and requirements for, a strong and stable state. The novelty of this paper is to interpret Han Fei's philosophy as welfare-maximization through a specific understanding of the role of virtue.

Weakness of the Will can impose a problem for most theories of rationality, since they try to assess rationality in the framework of one theory. Here, Akrasia is divides in three different types and each analyzed separately. First, someone changes her mind on her action. Second, someone “forced” to change her action without changing her mind. This force is alien to the will and can be a psychological cause. Finally, third, the same alien force is working upon the agent, but theagent thinks it to be her will.

What is Chinese Realism and how to update its research program? Realism analyses the world as it is – not as it should be. Realists, then, propose dealing with actual, real-world problems using actual, real-world instruments, such as incentives, rewards, and punishments. Once a major power in classical Chinese philosophy, Realism, or Legalism, fell out of favor early on in Chinese history. Its ideas, however, remain alive and powerful. This edited volume shows that many of the Legalist recipes for creating strength, security, and order can still be applied today. Whether in international relations or corporate ethics, whether in the organization of the public sector or in the role that bureaucrats and politicians play, Realism offers unique ways of aligning these inherently particularistic actions with the broader common good.

This paper investigates the conceptual possibility for, and the institutions relating to a positive right of private property to data. To do so, it distinguishes between structured data, as a designator, and datapoints, which are data embedded in the timeline. The reasoning being explored here is: the agents generating datapoints – he source of the data – have a right to private property to the datapoints they generate. The agents, then, can choose to retain the datapoints or to sell them to data-users, aggregators, etc. Once these data-users render property of data themselves, they can further market it. There are, however, challenges to this view. One is the relative high cost of managing private property to data versus the relative low cost of misappropriating data and datapoints. The other is network effects: more precisely, data created or enriched in networks.

The Chinese Legalist Hanfei claimed that by separating the duties of the ruler as such from any moral claims attained to it, he made it possible for all rulers to apply “artifacts” for ruling. Ruling through moral superiority will fail because only few rulers will achieve it. Through the ruler running the “carefully oiled state machinery” as quasi-causal system, Hanfei claims to have developed a system of government suited even for the mediocre rulers. This paper claims that Hanfei shifted the difficulty from the ethical to the practical level, not solving the problem. Moreover, by changing the level of the problem, he also faces some epistemic and metaphysic challenges. In short: the supposedly ideal system of government Hanfei claims to have developed fails. It fails especially because it is too difficult for the mediocre ruler, perhaps more difficult than the Confucian. In the first section, the interpretation of Hanfei as a philosopher in the Daoist tradition will be briefly presented. In the second, Hanfei’s first—practical—difficulty will be examined; in the third, potential epistemic and metaphysic challenges will be shown.

This paper discusses commerce in Early Confucianism. It argues that the virtuous Confucian agent engages with the world in different ways, including in commerce – it is another way of acting with virtue. This conception is compared with two roughly contemporary approaches in economics, the thought of Wilhelm Röpke and the Humanomics project by Vernon Smith. In both, virtue is constitutive to commerce. However, they differ substantially in the exact relationship between virtue and commerce. While in Early Confucianism commerce is a way for the agent to unfold and cultivate virtues, in Röpke, virtues are a corrective to the utilitarianism in commerce. In Humanomics, agents engaging in commercial relations find shared virtues.

In contemporary academic philosophy, Chinese Philosophy remains a niche. This has a lot to do with its presentation, which often creates an impression of alienness and allegory, making its contribution, especially to analytical questions, not obvious. This paper examines how a change in presentation eases the inclusion of Chinese Philosophy into the mainstream. On the assumption that there has been an “activist turn” in the discipline in general, philosophical interest in a tradition that ranges from conceptual analysis, to ethics and politics, but that is ultimately focused on motivating actions, becomes more relevant and pressing. Since, in much of Chinese Philosophy, the philosopher is an activist, if the wider discipline is indeed undergoing an “activist turn”, then there is a connection here that should be made. In this paper, the connection is explained using two examples, Mozi and Xu Fuguan.

Whether for the republican president Sun Yat-sen or for the communist helmsman Mao Zedong, the legalist philosopher Hanfei (韓非), whose works marked the Qin Empire some 2200 years ago, still seems to be a source of inspiration. This paper traces the philosophy of Hanfei as a representative of political realism. In order to do so, these paper proceeds in three steps: First, realism is explained in terms of Hanfei, the “author” himself. Second, it is weighed how far his philosophy represents a break with Confucianism and Daoism or whether it can adapt elements of these schools of thought despite all differences. Thirdly, the question will be addressed to what extent Hanfei’s political realism is also a resource to explain contemporary political thought in China. This paper claims that realism, in the Chinese context, began early as a response to Confucianism and Daoism. This response is marked by adaptation and change of themes but also as introduction of novel elements. Realism remains an important factor in Chinese political philosophy.

The Rule of law often is considered to be a criterion for legal positivistic thinking. According to this maxim: can the Chinese Legalistic thinking of Shang Yang and Han Fei be considered as a sort of Legal Positivism? There are many positions shared by both, like the idea of a positive law or the binding character of the law despite of person and sympathies or even the concept of the law as a system. There is, however a important difference between them: legal positivism can be best described as “rule of the law” whereas Legalism best fits the idea of “rule by the law”, since there were no secondary rules stating how the legislator had to make the law. On the other hand, the strongest approach to draw a parallel between both is the commonly shared concept of realism of the law as social construction.