Virtue before Punishment and Punishment before Reward: a Comparative Study of Two Early Chinese Penal Virtue Theories

Abstract

Abstract The silk manuscripts of Huang-Lao, unearthed at the Mawangdui Han Tombs, articulate a theory that advocates nurturing penal virtue through the prioritization of virtue before punishment. Many scholars have used Han Fei’s concept of xingde-erbing 刑德二柄 to explain the theory and give it context. Contrasted with Legalism, represented by Shang Yang and Han Fei, which emphasizes rewards and punishments – with Shang Yang advocating punishment before reward – the Huang-Lao doctrine extends beyond this dichotomy. It notably diverges in its exploration of the relationship between the heavens and humanity, as well as theories on motivations underlying human nature. Han Fei’s concept of the xingde-erbing fundamentally aligns with Shang Yang’s approach to governance through the mechanisms of punishment and reward. Moreover, Han Fei’s notion of yindao quanfa 因道全法 posits that sovereigns, by governing according to universal principles and fully understanding the law, can ensure state peace and deter major crimes. However, this concept is distinct from Huang-Lao thought, which does not share the same ideological framework as the reward-punishment methods of Shang Yang and Han Fei. The analogous approach of the prioritization of virtue before punishment found in Guanzi, which stresses that wise and virtuous monarchs govern by aligning their decrees with the natural progression of the seasons, is closely aligned with Huang-Lao philosophy. The present analysis clarifies the longstanding intellectual debates between Huang-Lao and Legalism, affirming the distinctiveness of Huang-Lao’s penal virtue theory and illuminating the conceptualization of the heaven-human relationship during the Warring States period.