VOLUME V, CHAPTER 9
Law and Scarcity, the Longest Line of All, Land
The previous chapter closed Part Three and set a clear-eyed stance, defending neither power nor crime. Part Three dug the true position of law down to output, and this part follows that root further down and asks the most fundamental question of all, why does law exist at all. This chapter is the head of this part. It first sets the root proposition firmly, then takes "scarcity" apart, and last walks the most concrete kind, land, across three thousand years.
The first section asks, if resources were unlimited, would law still be needed, and the answer is no. If land were endless, and everyone could farm as much as he liked, would land law still be needed. If a position were always open, would selection still be needed. Han Fei says in ancient times people readily yielded goods, not out of humaneness, but because goods were plentiful, today people fight over them, not out of baseness, but because goods are scarce, seeing straight to the bottom in one line more than two thousand years ago. Law did not appear because people turned bad, it appeared because there was no longer enough to go around. Huang Zongxi says this is the law of a single family, not the law of all under heaven, seeing through that law is made for the sake of the lawmaker himself. But he stopped at imperial power, without chasing the next question, why the emperor had to legislate that way at all, and this section follows him one step further down. The contemporary West's law and economics speaks of efficiency and of wealth maximization, which is really the strong holding scarcity alone, wearing a different name, while Shang Yang, in the Book of Lord Shang, wrote plainly that the people should be weak and the state strong, and was more open about it. Marx's path is laid side by side too. He speaks of class, this work speaks of output, and that was his position, not his fault. Stack the seven layers together, and the root of law is insufficient output. This section sets the twenty-sixth layer.
The second section takes scarcity apart into four kinds, material, positional, relational, and cultural. Guan Zhong says one must first enrich the people, Laozi says a hall filled with gold and jade, no one can keep it safe, and this is material. Guan Zhong speaks to the trouble of "lacking," Laozi to the trouble of "overflowing," and material is the most visible kind, so its law is also the plainest. Position is crueler than material. Material output can grow, but a dynasty has only one chief minister, and the tool the ancestors built for it is the finest of all, pulling the contest for position out of the battlefield and into the examination hall. The imperial examination, running thirteen hundred years, is position, and the story of Fan Zhongyan chopping his porridge into pieces is its other face. The Rites of Zhou forbidding marriage within the same surname, the Ji and the Jiang intermarrying generation after generation, the line between the legitimate and the secondary, and the example of Concubine Zhao and Jia Huan in Dream of the Red Chamber, are relations. Cao Xueqin says nothing outright, he only lays the positions out, and one law of relations, working inside a single family, was enough to press out two entirely different lives. Confucius teaching without regard to class yet requiring tuition, and good schools tied to housing in the right district, are culture. Once cultural scarcity is held by one group, it can persist for a hundred years, a thousand years, and because it wears the coat of "educational fairness," it is the hardest of all to see through. The more intangible the kind, the greater its force in dividing up lives. This section sets the twenty-seventh layer.
The third section digs into the line of land. In an agricultural society, nine in ten people lived off the land, and when land moved, the whole realm moved with it. The Book of Poetry says under all of heaven, there is no land that is not the king's, and this is the well-field system. Under the Zhou, this was not merely a line of poetry, it was a legal fact, and a farmer could work a field his whole life and it was never his. Shang Yang abolished the well-fields and opened the field paths, and Dong Zhongshu says the rich have fields stretching field to field, while the poor have no ground even to plant an awl. Shang Yang changed monopoly by enfeoffed nobility into monopoly by a new military elite, a different set of the strong, while holding it alone never changed. Wang Mang established the royal field system, it collapsed within three years, and he was killed and his state destroyed. Yang Yan's two-tax law accepted the concentration, and Zhang Juzheng's single-whip law and the Yongzheng emperor's merging of the head tax into the land tax only worked at taxation. In the West, Rome's Twelve Tables protected the small farmer, the Gracchi brothers gave their lives for reform, England passed more than five thousand enclosure acts, and Thomas More spoke of sheep eating men. Who could enter Parliament, the landlords. Whom did the law the members made serve, the landlords themselves. China and the West run on the same line. This section sets the twenty-eighth layer. The Gracchi brothers and Wang Mang, one in the West and one in the East, held exactly the same position, both struck at the great landholders' root, and both paid with the reformer's life while the law itself was undone.
Across these three sections, building from the twenty-sixth layer to the twenty-eighth, this chapter sets the overall root, "why law exists," firmly in place, and also walks once through its most concrete sample. This chapter is dense with history and spans a great distance, yet its root is only one line, while output falls short, scarcity remains, and the strong legislate to hold it alone. The stance has not shifted. It only sets down facts, passes no verdict, and leaves the judgment to the reader. The next chapter turns from land to the three more hidden kinds of scarcity, position, relations, and culture, and then stands on the side of the weak to look at the roads before him.
Contents
Section One. Law Is a Tool for the Struggle over Scarce Resources.
Section Two. The Several Forms of Scarce Resources.
Section Three. The Strong Write Law to Hold It Alone, the Line of Land.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.
Section One. Law Is a Tool for the Struggle over Scarce Resources.