Volume V

Legal Institutions

VOLUME V

Legal Institutions

This is the fifth volume of Justice Way. It is about legal institutions.

Before reading on, let it be said plainly what this volume is and what it is not. It is not a law textbook. It does not teach the reader how to fight a lawsuit, how to sign a contract, or how to memorize statutes. Nor is it a book of criticism. It does not stand on one side to curse anyone, or to cry injustice on anyone's behalf. It is a book about "position." From beginning to end it does only one thing. It sets the real position of this thing called the law in front of the reader, layer by layer, and lets the reader see clearly for himself and judge for himself.

Why write it this way. Because of all the institutions of a society, the law is the one wrapped most beautifully, and the one it is easiest to lose sight of. Open any book of law and it speaks of justice, order, human rights, equality. Not one of these words is wrong. But they are like sheet after sheet of beautiful paper, and they wrap the real shape of the law up inside. What this volume does is peel the paper back, one sheet at a time, and see clearly what the thing under the paper really is.

Peel down to the very bottom and you will see a sentence so plain it is a little uncomfortable. The law is not a justice that fell from the sky. It is a tool that grew up out of the ground. It is made by people, so it carries the position and the limits of the people who made it. This sentence is not meant to make the reader stop trusting the law, or stop using it. Just the opposite. It is meant to let the reader, once he sees what the law is, use it, keep it, and change it with a clearer head.

In all, this volume has six parts, fourteen chapters, and forty-two sections of main text, stacked into forty-three layers. These forty-three layers are not scattered. They are strung on one line, straight through to the end.

Part One, the roots of law. It first sets the highest position of law. Above the head of the law there is still something else. The ancestors called it the Way of Heaven, and this book calls it natural law. A law people make that agrees with it stands steady. A law that runs against it collapses. Then it sets down that law is Wei, what Xunzi called the made. Everything people make is Wei, and the law is the largest made thing of all. Then it sets the layer that matters most. Whom the law serves is not decided by its words. It is decided by the position of the people who make it, enforce it, and interpret it. This part lays the foundation all the way across. However high the five parts after it rise, they all come down on this foundation.

Part Two, how law runs. It answers the knot Part One left behind, why the law, once it runs in real life, so often runs differently from what is written. Because the real direction of the law is decided by the structure of power, and power by nature expands itself, so the law drifts, all the way, toward the strong. Following that thread, it looks at public legal education, lawyers, lawmakers, vested interests, and the self-rescue of the weak, and the road runs heavy. But this part does not stop in the heavy place. At the end it raises the highest position of law, self-discipline, the highest law a person gives to himself, and above that, "the state where disputes never reach the court," where everyone governs himself. That is the highest condition of law.

Part Three, how law treats an ordinary person. The lens pulls in as close as it goes and walks right beside a living person. It looks at which way the burden of proof points, at how guilt is really a matter of position, at how the law is dead and a person is alive. Then it looks at who "we the people" really includes. At the end it sets down a clear-eyed stance, defending neither power nor crime, and measuring both ends with the same ruler, "do not do to others what you would not want done to yourself."

Part Four, law and scarcity. This part digs to the question at the very root, why the law exists at all. The answer is this. When output falls short there is scarcity, scarcity brings struggle, struggle brings lawmaking, and the lawmaker is the strong. From land, a line three thousand years long, to the imperial examinations, marriage, and learning, to eight tools in present-day America and China, one logic takes in all of it, ancient and modern, East and West. At the end of the part, the lens pulls back from inside one nation to the space between nations.

Part Five, position between nations. Between nations there is no highest lawmaker and no highest enforcer, only the balance of strength. This part sorts international behavior into five layers, from the shallow to the deep, and the deepest layer is called occupying a position. Then it looks at what kind of nation goes to take, and what kind gets taken. Last it looks at the three responses of the taken, to accept, to resist, to grow strong. It says the taker is not an evil man, and the taken is not a good man. It all depends on which position each one stands in at that moment.

Part Six, the age of artificial intelligence. This is the heaviest step the whole volume takes down onto the ground. It pushes every position that came before to a juncture each person is standing inside. Artificial intelligence is one more industrial stampede, and the law always lags behind, and once it catches up, it is mostly made for vested interests. Artificial intelligence is a tool, but most of the people training it hold no license. When something goes wrong, there is a sea of people and no one to hold responsible. And the people it replaces stand on a narrower and narrower position. All forty-three layers of the volume are capped here, and stop in front of a paradox that is laid out and not resolved.

Before reading this volume, there are three things I ask the reader to keep in mind.

First, this volume only lays out positions. It gives no way out. Every bind will be set before your eyes, but there will be no ready-made answer. The answer is in the next volume, Saving People. The more thoroughly this volume lays out the positions, the more firmly the way out in the next volume will stand.

Second, this volume takes no side. When it speaks of China, it does not boast. When it speaks of the West, it does not smear. It does not crown the strong as evil, and it does not lift up the weak as good. It believes one thing. Laying out the positions of both sides as they are is more useful than making any judgment for the reader. The judgment is the reader's own business.

Third, almost no sentence in this volume is new. Laozi, Confucius, Mencius, Xunzi, Han Fei, Zhuangzi, Guan Zhong, Shang Yang, Huang Zongxi, Sima Qian, Wang Yangming set these positions out more than two thousand years ago. This book only takes what the ancestors said, puts it in the plain speech of today, joins it to the affairs of today, and says it once more.

Now, I ask the reader to bring a pair of eyes willing to see positions clearly and in no hurry to judge, and walk into Part One, the roots of law.

Contents

Part One. The Roots of Law.

Chapter One. What Law Is. Natural Law, Wei, and Whom the Law Serves.

Section One. What Law Is. The Ancestors Wrote It Down Twenty-Five Hundred Years Ago.

Section Two. Wei Is Neutral. What Is Made by Human Hands Is Wei.

Section Three. Whom the Law Serves.

Chapter Two. Three Old Sayings of Ordinary People, Where the Base of Law Sits.

Section One. The Law Is Never Far from Human Feeling.

Section Two. The Law Cannot Govern the Many.

Section Three. No One Is Without Fault, and So the Law Is Never Perfect.

Chapter Three. Law Inside the Web, and How a Person Lives Within It.