VOLUME V, CHAPTER 1, SECTION 1
What Law Is. The Ancestors Wrote It Down Twenty-Five Hundred Years Ago
What is the law. The question looks simple, and most people go their whole lives without once stopping over it. They take the law as given, as something that ought to be there, the way the ground ought to be under their feet. This section does not yet ask how the law is used. It steps back one pace and asks where the law comes from, and what, if anything, sits above its head.
Start with the plainest question there is. Is more law better, or less. Nearly everyone answers at once, more, of course. The fuller the law, the finer its mesh, the fewer bad people slip through, the safer the ordinary person is. In the twenty-first century this is common sense, and it is where almost every law textbook begins. Behind that common sense sits a whole picture. The law is a net woven tighter and tighter, and the smaller the holes, the fewer wrongdoers escape. Follow the picture out and a person comes to feel that the thicker a society's book of statutes, the more civilized it is, the more advanced, the more to be trusted.
Twenty-five hundred years ago, Laozi wrote the exact opposite.
The more laws are put on display, the more thieves there are. So it stands in the Dao De Jing. The line is so plain it is almost hard to believe. The more laws are set up, the finer, the stricter, the more thieves there turn out to be. The law was meant to cut theft down, and in the end it raised a larger crop of thieves. A reader's first response is usually to resist. How could more law make more thieves.
Here is the position Laozi is setting. Law is not the cure. Above the law's head sits something higher, and however densely the law is woven, if it runs against that higher thing, the more of it there is, the worse the disorder grows. What that higher thing is, this section will say at the end. For now, hold the reversal in mind. Think of something close to hand. A place lays down more and more rules, the gate checks tighten, the forms grow thicker, notices go up on every wall, and by all rights it should get more orderly, and it usually goes the other way. The finer the rules, the more seams they leave, and there are always people who live off the seams. Rules meant to fence people in become, in the end, a diagram for how to climb through. Laozi is not saying do without law. He is saying that once law grows so dense it fights itself, it stops governing theft and starts breeding it.
Yet in the twenty-first century almost no one speaks of law this way. Open any modern law textbook and the words are the rule of law, equality before the law, obey the law without exception, punish every breach. The more it is said, the more the law looks like the cure for the world, the key that holds order up, shields the weak, and binds the strong. The law comes to seem the highest achievement of civilization, the most precious inheritance of several thousand years, the last wall keeping savagery outside the door. Doubt it even a little and you seem to be speaking for chaos and brute power. Is Laozi speaking of the same thing the modern textbook speaks of. This section is in no hurry to answer. What it means to do is lift the law gently out of the language of ism and stance and ought, and set it back in a plainer position. That position is not one this book invented. The ancestors set it down more than two thousand years ago. This arrangement only takes it back out.
To see the law's position clearly, a person first has to recognize one character. Around 250 BC, Xunzi wrote three words. What is made by human effort is Wei. In the Chinese world the character Wei has long been read as false, as artificial, as a made thing that is somehow inferior. That is not what Xunzi meant. His Wei is simply the human-made, what human hands fashion and human hearts set up. The character carries no praise and no blame. The later reading, false, is a prejudice added on by later people. Read Wei as an insult and a person instinctively feels that whatever is made by hands is less trustworthy than what is born of nature. Xunzi meant the reverse. He wanted a person first to see clearly whether a thing is made by human hands, because only after seeing that can you begin to say how it should be handled.
A tree grows on its own, a table is made by hands, so the table is Wei. A river flows on its own, a canal is cut by hands, so the canal is Wei. Sunrise and sunset come of themselves, the writing and the enforcing of law are done by hands, so the law too is Wei. With one character Xunzi sets the born and the made apart. The depth of that character the next section opens on its own. What matters here is this. Since the law is Wei, carved by hands and set up by hearts, it must carry the position of the one who set it up, his private interest, his limits. That point is the root the rest of this volume keeps returning to.
If the law is made, is there anything that is not made. There is. Look out the window. Sowing in spring and harvest in fall is natural law. Sun and moon rising and setting is natural law. That a person is born, ages, sickens, and dies is natural law. That a person carries private want and greed is natural law. That the strong and the weak keep trading places is natural law too. Can a person change these. Yes, and no. Yes, in that a person can follow them, work with them, use made things to fit himself to them. No, in that a person cannot break them, cannot cancel them, cannot set himself above them. Rise above them and the cost comes due.
Laozi wrote another line. Heaven's net is vast, and though its mesh is wide, nothing slips through. Heaven's net is not a made net. It is natural law itself. Wide, yet nothing escapes it. A made net of law, however tight, still leaks. The guilty get away, the innocent are wronged, and this is the plain record of several thousand years of legal practice. Heaven's net is different. It is wide, and it does not leak, because it does not run on judges, police, prisons, and lawyers. It is simply there, turning by itself, with its own way of coming back level. The made law, however dense, still leaks. Heaven's net, however wide, does not. Laozi saw that one dense, one wide, twenty-five hundred years ago. This does not mean Heaven reaches out to punish anyone. It means natural law has its own turning, and a person may hold it down for a while but cannot hold it down for long.
Since the law is made, it will always change. Around 350 BC, Shang Yang, reforming the state of Qin, said there is no single road to governing well, and to benefit the state one need not follow the old ways. Shang Yang saw clearly that a made law is never final. It is only one response, at one time and one place, to natural law, and so it has to be adjusted as things move. Yet Shang Yang himself was torn apart by the very law he laid down. He set up a harsh law that turned weak Qin into a strong power, and once the ruler who backed him was gone, he was executed under his own statute of collective guilt. The law had not changed. What changed was whose head it landed on. The one who writes the law believes he stands above it, that it is for governing others and cannot reach him. Shang Yang believed that his whole life, until the law he made came down on his own neck. Anyone who sits in the seat of writing or enforcing law and forgets this line is, sooner or later, devoured by what he set up. This is the earliest and least merciful stroke in the Chinese world on the law turning back to bite the lawmaker. The position it sets is simple. The one who writes the law does not stand outside it. He is inside that same net, along with everyone else. No one should count on the rules in his hand working only ever on others.
Laozi, Xunzi, and Shang Yang, three strokes, have already set out several layers of the law's position. Law is a made thing, not handed down from Heaven. More law is not always better. The one who writes the law cannot stand outside it. Over the next two thousand years other ancestors added their own strokes from their own positions, and here they are only touched, not opened, each with its own section later. Guan Zhong said one must first make the people rich, setting the law as a means and the people's wealth as the end. Confucius said, lead them with government and level them with punishment, and set the law across two layers, the governing of conduct and the governing of the heart. Mencius said bare law cannot carry itself, and Xunzi said law cannot stand alone, and the two together set out one thing, that law leans on people, and no person is without fault, so the law will always run crooked.
These men lived centuries apart, may never have met, and spoke on different subjects, yet the strokes each set down fit together seam to seam into one whole net. This is not one copying another. It is that each looked honestly at the same thing, and the positions they saw naturally lined up. What the sections ahead do is draw the cords of that net out, one at a time, and show them to the reader.
The ancestors' net is plainer than today's legal science, and it is deeper. Plainer, because it uses speech the ordinary person can follow, with no term you must look up first. Deeper, because it never lifts the law out and sets it up alone. It keeps the law inside a larger net of natural law, the made, the wealth of the people, virtue and rite, and the imperfection of persons, so that a person can always see what still sits above the law's head. Modern legal science takes the other road. It lifts the law out of that net and stands it up as a discipline of its own, then splits it finer and finer, civil-law systems, common-law systems, religious-law systems, and the finer it splits and the more specialized it speaks, the further it drifts from the plain position the ancestors held. Law was never a thing off by itself. It is nature, the human heart, the people's livelihood, virtue, and the moment in time, all bound together, and pull away any one side and the law deforms.
Put it this way. A fish alive in water is one whole fish. Lift it out onto the table and cut it into head, body, tail, bone, and flesh, and each piece is clear, the sorting finer and finer, and the living fish is no longer there. What modern legal science does to the law is often exactly this. It cuts very fine and speaks very expertly, and the law that was alive, joined to natural law, is the thing that can no longer be seen. The ancestors did not carve the fish. They stood at the water's edge, pointed in, and said, look, that is how it swims.
So this section sets its first layer. The highest position of the law is natural law, not the law itself. However high, however dense, however sacred a made law is piled, it cannot rise above natural law. Any law that breaks natural law, however long it stands, is taken back by natural law in the end. Laozi wrote one more line. The Way of Heaven takes from what has more than enough and gives to what has not enough. The way of man is the reverse. It takes from what has not enough and offers it up to what has more than enough. The made law often runs against natural law, and a law that runs against it is, in the end, pulled back. So the section sets a second layer as well. A made law may lean away from natural law for a time, and natural law will bring it back level.
The deepest posture in the ancestors' treatment of law is to lay out, not to judge. In his records, Sima Qian wrote of Shang Yang torn apart under his own law, of harsh officials whose severe law seldom ended well, of the officials who followed Heaven and often lasted generations, and he drew no conclusion. He set the facts down and let the reader see. This section holds the same posture. It sets the two layers of position firmly and does not judge for the reader.
The next section takes the character Wei out of the prejudice of false and returns it to the position Xunzi first gave it. Let the reader carry these two positions, natural law and the made Wei, into the section that follows.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.