VOLUME V, CHAPTER 9, SECTION 1
Law Is a Tool for the Struggle over Scarce Resources
Part Three dug the real position of the law down to output. This part follows that root downward and asks the most fundamental question of the whole volume. Why does law exist at all. This chapter is the head of the part. This section sets the root proposition. Ask one plain thing first, and the whole ground opens under it. If resources were endless, would we still need law.
Run the thought all the way out. Imagine a world where everything a person could want was without limit. Food that never ran short, land without an edge, every good thing endless and free for the taking, so that no matter how much one person took, no other person had a grain less. In that world, would there be law. Think it through and the answer is no. There would be nothing to steal, because to take a thing would deprive no one, and what deprives no one cannot be theft. There would be no fraud, because no one would need to cheat for a share when every share was endless. There would be no disputes over property, over boundaries, over inheritance, because none of these would mean anything where everything was without limit. The great bulk of the law, the part about mine and yours, about taking and keeping and dividing, would simply have nothing to do. Law, in a world of endless resources, would be a tool with no work.
So the very existence of law tells us something about the world. Law exists because the world is not that world. Resources are limited. They will not stretch to everyone's want. And some people want to take more than their share. These three facts together are the precondition of all law. Take the plainest reading of it. The law is a tool made under scarce output, by the strong, to hold the scarce thing for themselves and to check the grabbing of the weak. Read that slowly, because it undoes a great deal. The law is not a justice that fell from the sky, handed down perfect to shield the good and punish the wicked. It is a tool that grew up out of the ground, out of the plain fact that there is not enough, and that those who got hold of the scarce thing first want to keep it. This is the root proposition of the whole part, and every layer ahead grows from it.
Follow the chain that leads to it, link by link, because each link is plain and the conclusion only looks hard. Output falls short, so resources are scarce. Scarcity means not everyone can have what they want, so there is struggle over the scarce thing. Struggle, left wild, tears a group apart, so the group needs rules to govern the struggle. The one who sets the rules is whoever has the upper hand at the moment of setting, which is the strong. And the strong, setting the rules, secure their own share first, before anyone else's. So the rule, the law, comes out of the gate already leaning toward the strong, not by anyone's wickedness but by the plain order of how it got made. Scarcity, struggle, rules, the strong set the rules, the strong secure their share. Five links, each following from the last, and at the end the law stands revealed as what it is, a tool born under scarcity, shaped by the hand of the strong.
The ancestors saw to the bottom of this long ago, and said it in fewer words than this. Around 250 BC, Han Fei cut to the root in four characters. When goods are few, men fight. Where things are scarce, people contend. Han Fei was not moralizing. He was stating a law of the world as plain as gravity. Contention is not a sign that people have gone bad. It is what scarcity produces, the way heat produces expansion. He went further, and tied it to time. In high antiquity, he said, people did not contend, not because they were nobler then but because people were few and goods were many, and there was enough to go around. Later people multiplied and goods grew short, and contention began. So even the morality of an age, Han Fei saw, rides on whether there is enough. Praise the ancients for their gentleness if you like, but their gentleness sat on full granaries, and put them in a famine and see how gentle they stay. This is the coldest and clearest root, and it is the same output falling short this volume has struck again and again.
Huang Zongxi caught the same root from the middle of it, at the level of the law itself. Around 1660, Huang Zongxi wrote the line this volume keeps returning to. The law of one household is not the law of all under Heaven. He meant that what the rulers called the law of the realm was, at bottom, the law made to keep one house's hold on the scarce thing, dressed in the name of the whole. Lay this over the root proposition and it fits exactly. The law made by the strong to hold the scarce thing for themselves is the law of one household. The name it wears, the law of all under Heaven, is the dress. Huang Zongxi tore the dress off three hundred and some years ago and named the body under it. The law that claims to be everyone's is, so often, one household's hold on the scarce thing, written large.
But here the honest balance, or the root proposition turns into a slogan. To say the law is the strong's tool to hold the scarce thing is not to say the law is only that, or that it does no good, or that a person should scorn it. Reread the plain reading, and it has a second half, to check the grabbing of the weak. A law that holds the scarce thing for the strong also, at the same time, holds a floor of order under everyone, so that the struggle over scarcity does not become open slaughter in which the weak fare worst of all. The weak need the rules too, precisely because without any rules the strong would simply take everything by force and the weak would have nothing at all. So the law is a tool of the strong and a shelter for the weak at once, and which face shows more depends on all the layers this volume has traced, whom it was made by, whom it serves, whether there is a check over power's head. The root proposition is not a call to hate the law. It is a call to see what the law is made of and why it exists, so that a person stops expecting it to be a justice from the sky and starts reading it as a tool from the ground, which can be turned toward shelter or toward holding, and asking, of any given law, which way it has been turned.
So this section sets a twenty-sixth layer. Law exists because output falls short. If resources were endless, there would be no law, because there would be nothing to divide, steal, or dispute. Since resources are scarce, and some want more than their share, the group needs rules over the struggle, and the one who sets the rules is the strong, who secure their own share first. So at the root the law is a tool made under scarce output, by the strong, to hold the scarce thing and to check the grabbing of the weak, a justice not fallen from the sky but a tool grown from the ground. Han Fei said when goods are few men fight, Huang Zongxi said the law of one household is not the law of all under Heaven, and both saw to the bottom of it more than two thousand and more than three hundred years ago. Hold this root, and every law a person meets can be asked one question at the base, what scarce thing does this rule govern, and whose hold on it does the rule secure.
The next section breaks scarcity itself open, and finds it is not one thing but four, material, position, relationship, and culture, each more hidden than the last, and the more abstract the kind, the greater the force it spends sorting out a life. Let the reader carry this root proposition into the section that follows.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.