VOLUME V, CHAPTER 9, SECTION 1
Law Is a Tool for the Struggle over Scarce Resources
The previous part dug the true position of law all the way down to insufficient output. This part follows that root further down. This section asks the plainest question of all, why does this thing called law exist at all. Dig this layer to the bottom, and the whole part's foundation stands firm, law is a tool the strong build, under insufficient output, to hold scarce resources alone and to hold back the weak from seizing them.
One. First Ask the Plainest Question, If Resources Were Unlimited, Would Law Still Be Needed
Mainstream discourse holds that law is justice, is order, is the guarantee of human rights, is the mark of civilization, and after centuries this has become a premise no one thinks to question anymore. But ask one question, if resources were unlimited, would law still be needed, and the whole building's foundation shows itself.
If land were endless, and everyone could farm as much as he liked, would land law still be needed. If food never ran out, would a system of distribution still be needed. If a position were always open, and anyone could take whatever office he wished, would selection still be needed. The answer is plain, no. Law exists on the premise that resources are limited, insufficient to go around, that someone wants more, and someone will get less. This premise is normally hidden carefully behind bright words like justice, order, and human rights, hidden so well that even legal scholars nearly forget it themselves. This section brings it out into the open.
Two. More Than Two Thousand Years Ago, Han Fei Saw Straight to the Bottom in One Line
Around 250 BC, Han Fei wrote, in the chapter The Five Vermin, that in ancient times fruit was enough to eat and hides enough to wear, and people were few while goods were more than enough, so the people did not fight. Later, population multiplied again and again while goods grew scarce, and labor grew hard while its reward grew thin, so the people fought. He set down the least forgiving line of all.
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. Han Fei, Han Feizi, The Five Vermin.
The ancients yielded not because they were kinder, but because goods were plentiful. People today fight not because they are baser, but because goods are scarce. The same human nature, when resources run plentiful, naturally yields a little, and when resources run scarce, naturally fights a little. Law did not appear because people turned bad, it appeared because there was no longer enough to go around. A root that twenty-first century law textbooks circle around without ever naming, Han Fei saw straight to the bottom of in one line.
Three. Break Han Fei's Line into Five Plain Sentences
The first, law exists on the premise of scarcity, when resources are plentiful enough, no one bothers to legislate a distribution law. The second, scarcity exists on the premise of insufficient output, when output cannot keep up with need, things fall short. The third, whoever makes the rule is whoever has the strength to make it, and across history this has always been called the strong. The fourth, when the strong make the rule, what they protect first is their own share, and only after that does anything resembling fairness enter in. The fifth, so law was never a neutral tool from the start, it is what the strong build, under insufficient output, to hold scarcity alone and to restrain the weak from seizing it.
Strung together, these five sentences are the root this part is about to unfold, and also one proposition running through the entire volume. Part Three touched on this once already. This part sets it firmly in place for good.
Four. More Than Three Hundred Years Ago, Huang Zongxi Dug Down to This Same Layer
At the turn from Ming to Qing, Huang Zongxi wrote, in Waiting for the Dawn, On the Origin of Law, that the law of the Three Dynasties and before stored the realm inside the realm, made for the sake of all under heaven, while the rulers after the Three Dynasties, having gained the realm, feared only that their descendants could not keep it, and so guarded against every quarter and schemed at every turn, and it was this scheming that they set down as law.
This is the law of a single family, not the law of all under heaven. Huang Zongxi, Waiting for the Dawn, On the Origin of Law.
Qin replacing enfeoffment with commanderies was so the commanderies would belong to itself. Song stripping military power from its regional garrisons was fear that the garrisons would work against it. Across every dynasty, when has a ruler's law ever carried one grain of true concern for all under heaven. Huang Zongxi had already seen through this, that law is made for the sake of the lawmaker himself. But he stopped at imperial power, seeing that the emperor legislated for himself, without chasing the next question, why the emperor had to legislate that way at all. Dig one layer deeper, down to there not being enough to go around, and only then does the emperor need to lock down his own share first. This is the step this work takes, following Huang Zongxi, one layer further down.
Five. The Contemporary West Also Has a Vein Speaking of Law and Scarcity, but It Stops Halfway
In the latter half of the twentieth century, a school of law and economics rose in America, holding that the core of law is the distribution of scarce resources, its goal wealth maximization, its standard efficiency. This sounds very close to what is said here, both speaking of law and scarcity, and yet it never reaches several places the ancestors had already reached.
It treats scarcity as a natural given, and never asks further about output. It treats legislating as a neutral tool of efficiency, without seeing that the lawmaker himself already stands in the position of the strong. It measures efficiency by how much a person can afford to pay, so the preferences of the wealthy carry greater weight, and law naturally tilts toward the wealthy, and this gets called wealth maximization, when it is really the strong holding scarcity alone, wearing a different name. More than two thousand years ago, Shang Yang wrote plainly, in the Book of Lord Shang, that the people should be weak and the state strong, with no packaging around it at all, and yet this modern vein dresses a very similar logic up as efficiency, as science, as neutrality. This is not a matter of who ranks higher. It is a difference of position and a difference of language, only the ancestors spoke first, and spoke more plainly.
Six. Someone Will Ask, Did Marx Not Already Say Law Is Made by the Strong
Marx did indeed say that law is a tool of the ruling class, speaking of class, of the relations of production, of exploitation, along a path where whoever owns the means of production legislates to protect himself, and the class beneath must rise to overturn it and legislate anew in its place.
This work speaks of a different path, speaking of position, of output, of scarcity, along a path where insufficient output creates scarcity, scarcity leads the strong to legislate and hold it alone, and the way out is not overturning one set of strong men for another, it is output growing greater than need, so that scarcity itself disappears. The two paths are not the same. Marx, starting from his own vein, spoke something real, only he never connected to that older root in the East. Han Fei's one line, that plenty does not fight and scarcity fights, is cleaner than an entire theory of class, and Marx never once read it in his life. This was his position, not his fault. This work passes no verdict on who was right, it only lays the two paths side by side.
Seven. Stack the Seven Layers Together, and Why Law Exists Becomes Clear
The first layer, insufficient output. The second layer, insufficient output leads to scarce resources, land, food, position, title, marriage, education, reputation, everything not enough to go around falls into the range of contest. The third layer, scarcity leads to contest, a person must live, must live well, must leave something for his children, and so naturally contends. The fourth layer, contest needs rules, without rules it becomes prolonged chaos, and everyone loses. The fifth layer, whoever makes the rules is whoever has the strength to make them, the strong. The sixth layer, the strong, making the rules, protect their own share first, and only then does anything resembling fairness follow. The seventh layer, so law, seen down to its root, is the tool the strong build, under insufficient output, to hold scarcity alone and to restrain the weak from seizing it.
These seven layers, running from the deepest root of output down to the surface rules of law, fit together without a single gap.
Eight. A Few Things Must Be Said Up Front, to Avoid Misunderstanding
First, this is not saying law is bad. Whether law is a tool for fighting over scarcity is a question of fact. Whether it ought to be is a question of value. This part only lays out the facts, and passes no judgment of value.
Second, this is not saying the strong are bad. The strong legislating is the position of the strong, and the weak, standing in that same position, would legislate the same way. It is position shaping behavior, not morality shaping behavior. Shang Yang wrote the people weak and the state strong more plainly than anyone, and in the end he himself was torn apart between chariots, no more than a piece on the board of that same position.
Third, this is not saying law should be abolished. While output still falls short today, law remains a necessary tool. The question is not whether to have law, it is whether one sees clearly what it is. See it clearly, and the lawmaker carries one more measure of caution, the enforcer one more measure of restraint, the reader of law one more measure of understanding, and that is enough.
Fourth, the way out does not lie in reforming the law either. The one who reforms is himself among the strong, and once the reform is done, the strong still legislate, only a different set of them. The one true way out is output growing greater than need, output catching up, scarcity disappearing, the strong no longer needing to legislate alone, the weak no longer needing to break the law to contend. This is the root of the volume on saving people later in this work. This part only points the direction, without unfolding it.
Nine. The Position Set by This Section
This section sets the twenty-sixth layer. Law is not a justice fallen from the sky, it is a tool grown from the ground, its root in insufficient output, its lawmaker the strong, and its earliest use, to hold scarcity alone and restrain seizure. Bring out Han Fei's source, connect Huang Zongxi's middle stretch, and lay the seven-layer reasoning out for the reader step by step, and this part's foundation stands firm.
Carrying this one proposition, a reader looking at any kind of scarcity, any law, any reform, sees with different eyes from now on. This is not meant to turn a reader against law forever. It is meant to leave him, once he has seen through it, calmer instead, knowing exactly where to push if he truly wants to loosen this knot.
The next section unfolds the several forms scarce resources take. It will take the word scarcity apart, and show that it is not only food or land running short that counts, position running short, quota running short, reputation running short, all of these are scarcity too, and law has built a tool for every one of them. Carry this layer, that law's root is in scarcity, and walk into the next section.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.