Criminalizing Job Performance

Abstract Shang Yang and Han Feizi advocated performance-based law and excessive punishments, which they believed would prevent people from deceiving the lord and violating the law, thereby creating a crime-free utopia. However, by examining the archaeologically excavated materials and the transmitted sources, the author demonstrates that this brutal instrumentalism and idealism generated a monstrous legal system in real politics that distorted justice. The author argues that the Qin-Han legal system excessively punished administrative mistakes as crimes. Intended to promote efficiency, performance-oriented legislation prescribed rigid, detailed, and high-standard job objectives with absolute liability. A large number of officials, including those industriously devoted to their jobs, violated the law. Excessive punishments caused officials guilty of administrative errors to suffer the same bodily pain and economic loss as those who inflicted serious harm on society through intentional violence. When the punishment was neither deserved nor just, resentment arose against the law, and sympathy for the condemned emerged. This unjust practice triggered heated criticism among scholars, officials, and sometimes emperors, but no efficient legal reforms ever occurred. This article is intended to provoke thought about the dangerous application of perfectionism in the real world and to explain historical roots of the long-standing Confucian tradition against rule by law.