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Citation:

Lyon, Arabella. “Rhetorical Authority in Athenian Democracy and the Chinese Legalism of Han Fei.” Philosophy & Rhetoric 41.1 (2008): 51-71. Print.

Abstract:

The article discusses the rhetorical authority in Athenian democracy and the Chinese legalism of Han Fei. According to the author, Western rhetoric assumes power through speech before Christian era (B.C.E.) and Athenians was fascinated with the discovery of subjectivity and practiced the power of ego. They were influenced by Aristotle who gave attention to the authority of practical reason that comes from experience and mature judgment. However, Chinese philosophy and rhetoric went in a different direction. The author stresses that Chinese philosophers remain concerned with violence unlike most western rhetoricians in post-Aristotle era. The author notes the time of Han Fei who trusted the law and not the individual’s power for the creation of good and stable state for the public.

Keywords: non-western rhetoric, ancient greek rhetoric, legalism, comparative rhetoric, burke, dramatism, Chinese rhetoric, non-rhetorical politics, daoism, confucianism, non-action, rhetorical silence

Summary:

  • Lyon begins with a  couple of core questions: 1) Where does rhetorical authority lie?  Does the role of the rhetoric differ in democracies and authoritarian states?  How does the institutional placement of power affect rhetoric and its theories?  What are the possible relationships between the rhetor and the audience?  (51)
  • L. claims that most understandings of the “powerful” rhetoric assumes a Western viewpoint of parity between speaker and audience. [1. This seems to be something of the same assumption that Habermas makes about the “critical-rational sphere” of his idealized coffeehouse of discourse.]  Instead of depending on the rhetorical authority and ethos of the speaker, Lyon looks to the legalism of Han Fei (289-233 BCE) as a corrective that complicates this understanding of authority by outsourcing it to other rhetor/audience dynamics – namely, the dynamic of state authority.
  • This reorientation also calls for an alternative formulation of the relationship between speech and act.  Moving away from the individual and text, this realignment via Han Fei thinks about speech and act in new ways: legal, non-action, and rhetorical (53).
  • L. claims that Western rhetoric assumes a linkage between speaking and power.  Justice and tolerance of difference – the core components of any good democracy – were dependent on the practical elements of reason who argued away from emotion and toward the logical conduct of the state [away from violence] (54).  The individual becomes a phronemos or highly individualistic speaker who goes beyond “the rules, laws, and abstract norms to deliberate and then act with authority” (55).  The Chinese took a different tact – violence was always considered in rhetorical discourse and the act of speech was intrinsically linked to the material fulfillment of it’s hoped for future.  As such, speech was carefully chosen and negotiated only with an attendance to carrying out action.  Speech and action were always united; as such, silence was a common rhetorical tactic (55).
  • Han Fei trusted the law and not an individual speaker to create the public good and the stable state (56).  This means society is not organized by human relationships (feudal system) or status/power (aristocracy); rather, society is legalist or ordered by the law.  This position rejects moral standards and strives for objectivity in the law.  Legalism combined law (fa), method (shu), and position/power (shi) to rule the state according to this objectivist paradigm (56).
  • In Han Fei’s legalism the ruler (power/position) doesn’t control the law; rather, the law is a “form of speech” to the enlightened ruler (59).    As L. notes, “In the stable state, one without rhetorical deliberation or significant diversity, the law is the significant speech act” (59).
  • Because of the dangers of the rhetorical situation, Han Fei argues for strategic silence as a rhetorical tactic to avoid deliberation and danger.
  • The “tally” between speech act and material act is of utmost importance in Han Fei’s legalism: when the material act differs from the speech act the balance of the system is disrupted (think the “Keeper of Hats” example).  The law is breached and must be punished (even if the motives are positive).  There is not a morality at work (as in ancient Western Greek discourse) but a legalism that strives for objective application of all standards (61).
  • The legalist system doesn’t need rhetoric because it disrupts the speech act-material act dialectic; as such, the policy of wuwei or “non-action” provides the ruler with the ability to rule without fear of rhetorical discourse and rhetorical situation.  This tradition also dovetails nicely with dao (62).

Key Quotes:

When Anglo-American speech act theory is placed against Han Fei’s theory of rhetoric and its implicit speech act theory, we better imagine the possible places of authority and action within rhetoric. While I look briefly at a

common rhetorical concern with violence and at Confucius, more specifically I consider the writings of Han Fei, a Legalist, who wrote on methods of governance for kings and persuasion for ministers. As a Legalist, a leader in the school of classical Chinese philosophy concerned with law and method as a means of ruling, he provides a good path into imagining alternative placements of act and authority. His writing, Han Fei Zi, influenced the first emperor of China, Qin Shi Huangdi, and so indirectly took part in the unification of the Chinese empire.3 Furthermore, his political philosophy coupled with his concept of the power/position (shi) and political rhetoric reveals the lapses of and gaps in democratic rhetoric and its focus on individual and textual authority. Finally,

his work is helpful for thinking about speech act theory because implicit in his writing are three ways of thinking about speech acts: legal or conventional speech acts, non-actions as acts and hence also a means to an end, and rhetorical speech acts. All three ways of acting are associated with violence to the diminution of rhetorical glory. (47)

Hence, while Legalism has been called everything from “totalitarianism” (Fu 1996) to “behaviorism” (Schwartz 1985, 321–22), it is more realistically understood as a continuum of approaches to providing a stable government based in an objective code, a code that binds even those in power. (58)

Rhetorically wise, Han Fei is well aware of the ruler’s desire to be a cultivated leader or gentleman of moral worth; he is aware of the potential appeal of Confucian morality and authority placed in an individual ruler. Against the rival philosophy, Han Fei has to argue for the development of “a set of dispositions” that will make the state and the law strong. The act of non-action is not simply a paradox or following of the Dao, but a cognitive training to rule. The effect of non-action is to force action and the disadvantage on ministers, a positive side effect. The speech act of the laws and the cumulative actions of the ministers together allow the ruler’s non-action as a method of protecting the state, but as well, the ruler can see his non-action even as evidence of his wisdom, worth, and bravery. In  summary, when Han Fei advocates non-action, he conceives it as having the effects of an act without the difficulty of the reality/word split and without the dangers of perlocution. Furthermore, he offers the disposition of non-action as an appropriate cultivation for a ruler and a gentleman thereby subsuming Confucian appeals (63).

Legalism has a significantly different understanding of persuasion, power, and the state: non-action and silence have a larger role than persuasion. For Han Fei, the individual rhetor, regardless of the truth or situation, is less significant than the law, the ruler, and the stability of the state. Self-interest is assumed, not because it necessarily is present, but because its presence is so dangerous. There can be no role for the reasoning citizen because of the scheming citizen. The Athenian rhetor, at least in the reigning imaginary, does things with words to change to world. In the best case, the is a person of practical reason, experienced and able to think beyond maxim and rules and so create the best possibilities. While there is certainly death and danger in the West—after all ,Socrates and Cicero, like Han Fei, were killed by the state—those dangers are not significant to rhetoric’s self-image. Athenian rhetoricians do not dwell on the dangers of speaking, but on practical reason, persuasive power, and their ability to shape the state. In the Han Fei Zi, however, the state and its representatives are acknowledged as a source of violence and individual subjects are subordinate to larger cultural institutions and laws. This understanding, prevalent in classical Chinese discussions of language, is lost in a Western fantasy of rhetorical glory. (66-7)

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