VOLUME V, CHAPTER 1, SECTION 1

VOLUME V, CHAPTER 1, SECTION 1

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

What is the law, really? The question looks simple, and yet most people go a whole lifetime without once stopping to ask it. They treat the law the way they treat the ground under their feet. It is just there, and it is supposed to be there. This section is not about how the law gets used. It steps back one pace and asks two plainer questions. Where did the law come from, and is there anything sitting on top of it?

Begin with the plainest question of all. Is more law better, or less? Almost everyone answers without thinking. More, of course. The more complete the law and the finer its detail, the fewer corners a bad person has to hide in, and the safer a good person becomes. That is common sense to most people in the twenty-first century, and it is where nearly every law textbook alive today begins.

Behind that common sense sits a whole picture. The law is a net, and the tighter you weave it, the smaller the holes, the fewer wrongdoers slip through, the safer the ordinary person is. Follow the picture down the road and you will naturally decide that the thicker a society's book of statutes grows, the more civilized and advanced and trustworthy that society must be.

But twenty-five hundred years ago, Laozi wrote down the exact reverse. In the Daodejing he left one line: the more laws and edicts are posted, the more thieves there are. The line is so plain it is almost hard to believe. The more law you make, and the finer and stricter you make it, the more thieves you end up with. Law was meant to cut thieves down, and instead it raised a bigger crop of them. Most readers bristle at this the first time. How on earth could more law mean more theft?

Here is the position Laozi is setting down. The law is not the cure. Above the law sits something higher. However densely you weave the law, if the weaving runs against that higher thing, then the more you make, the worse the disorder runs. What that higher thing is, this section saves for its close. For now, just keep the contrast in mind.

Picture something close to home. Take any place where the rules keep multiplying, the gates keep tightening, the forms keep thickening, and notices go up on every wall. By rights it should grow calmer and calmer. It usually runs the other way. The finer the rules, the more seams they open, and there are always people who make a living watching those seams. Rules meant to fence people in turn into a blueprint for slipping through. Laozi is not telling us to throw the law away. He is telling us that once the law multiplies until it is fighting itself, it stops curing theft and starts feeding it.

Now here is the strange part. In the twenty-first century almost no one speaks about law this way. Open any modern law textbook and you find the same refrains. The rule of law is supreme. All are equal before the law. Where there is law it must be followed, and where it is broken it must be prosecuted. The more this gets said, the more the law looks like the world's one cure, the tool that keeps order standing, shelters the weak, and reins in the strong. The law starts to sound like the highest thing civilization ever built, the most precious inheritance of several thousand years, the last wall holding barbarism outside the door. Question it even a little and you seem to be speaking up for chaos and raw power.

So are Laozi and the modern textbook talking about the same thing? This section is in no hurry to answer. What it wants to do is quieter. It wants to lift the law out of the language of doctrine and position and ought-to-be, and set it back down in a plainer place. That plainer place is not one this book invented. The ancestors marked it out more than two thousand years ago. This work only takes it back out and dusts it off.

To see where the law truly stands, you first have to make peace with a single character. Around 250 BC, the philosopher Xunzi wrote three words in his chapter on human nature: what is man-made is wei. In the Chinese world, the character wei has long been read as false, as put-on, as the artificial and the fake. But that is not what Xunzi had in his mind when he wrote it. His wei simply means the made, the human-made, the thing shaped by human hands and set up by human hearts. The character itself carries no praise and no blame. Reading it as false was a prejudice later ages laid on top of it. Read it as an insult and you will instinctively feel that anything man-made must be less trustworthy than anything born of nature. Xunzi meant the opposite. First see clearly whether a thing is man-made or not. Only after you see that can you begin to talk about how to treat it.

A tree grows on its own, a table is built by a person, and the table is wei. A river runs on its own, a canal is dug by a person, and the canal is wei. The sun rises and the moon sets on their own, while the making and enforcing of law is done by people, and so law too is wei. With one character Xunzi sets what is born of nature apart from what is made by hand. The full depth of that character gets its own section next. Here the point is narrower. Since the law is wei, carved by human hands and set up by human hearts, it must carry the position of the one who made it, his private interest, his blind spots. That single fact is the root this whole volume keeps returning to.

If the law is man-made, is there anything that is not? There is. Look out the window. Seed in spring and harvest in fall is natural law. Sun up and moon down is natural law. That a person is born, grows old, sickens, and dies is natural law. That people carry greed and appetite is natural law. That the strong and the weak keep trading places, on and on, is natural law too.

Can people change these? Yes and no. Yes, in that a person can follow them, can line up with them, can build man-made things to work alongside them. No, in that a person cannot break them, cannot cancel them, cannot set himself above them. The moment he sets himself above them, he pays for it.

Laozi has another line for this: heaven's net is vast, and though its mesh is wide, nothing slips through. Heaven's net is not a man-made net. It is natural law itself. Wide-meshed, and still nothing escapes. A man-made net of law, however tightly woven, always leaks. The guilty get away and the innocent are wronged. That is not a rare accident. It is the plain record of legal practice across thousands of years. Heaven's net is different. It is loose, and it does not lose, because it leans on no judge, no police, no prison, no lawyer. It simply runs where it is, and it carries its own way of pulling things back to true. A man-made law, however dense, leaks. Heaven's net, however loose, holds. Laozi saw both sitting side by side twenty-five hundred years ago. This is not to say the heavens step in to punish anyone. It is to say that natural law has its own workings, and that a person may hold it down for a while but never for long.

And the one who makes the law is standing inside that same net. Because the law is man-made, it will always change. Around 350 BC, when Shang Yang was remaking the laws of the state of Qin, he put it plainly. There is no single road to governing the world, and if a thing serves the state, there is no need to cling to the old ways. Shang Yang saw clearly that man-made law is never the final word. It is only a person's answer, at one time and in one place, to natural law, and so it has to keep being adjusted.

And yet Shang Yang himself was torn apart between chariots by the very law he built. He wrote a harsh code, and it carried Qin from weakness to strength. But once the king who backed him was gone, the law of collective guilt that he had authored came down on his own body and pulled it apart. The law had not changed. What changed was whose body it fell on. The lawmaker believes he is driving the law. In truth the law is also driving him.

This is the layer people miss most easily today. A person always assumes that the one who makes the rules stands above the rules, that rules are for managing other people and cannot reach him. Shang Yang assumed exactly that his whole life, right up until his own code closed on him. Anyone who sits in the seat of making law or enforcing it, and forgets this one fact, will sooner or later be bitten by the thing he built. This is the earliest and least merciful moment in the Chinese record of the law turning to bite the lawmaker. The position it lays out is simple. The one who makes the law does not stand outside the law. He is in the net along with everyone else. No one should count on the rules in his hand working forever on other people only.

Laozi, Xunzi, and Shang Yang, with these three strokes, have already laid out several layers of where the law stands. Law is a made thing, not something handed down from heaven. More law is not necessarily better. The one who makes the law cannot stand outside it. Over the next two thousand years, other ancestors added their own strokes from their own angles. They are only touched on here, each with a section of its own later. Guan Zhong said you must first make the people prosperous, which sets the law as a means and a prosperous people as the end. Confucius said to lead them with governance and align them with punishment, splitting the law into one part that governs conduct and one part that reaches the heart. Mencius said the law cannot walk on its own, and Xunzi said the law cannot stand on its own, and the two together lay out one thing. Law leans on people, and no person is without fault, so the law will forever come out a little bent.

These figures lived centuries apart. They may never have met. They were chewing on different questions. And yet the single stroke each of them set down fits with the others so cleanly that together they form one whole net. No one was copying anyone. They were all just honestly watching the same thing, and what they saw naturally lined up. What the next several sections do is pull the lines of that net out one at a time and hold each one up for the reader to see.

The ancestors' net is plainer than today's jurisprudence, and it is also deeper. Plainer, because it speaks in words an ordinary person already understands, with not one term you have to go look up. Deeper, because it never lifts the law out on its own to be worshiped. It keeps the law inside a larger net, tied to natural law, to the made, to the people's livelihood, to virtue and ritual, to the plain fact that no person is faultless, so that you never lose sight of what is sitting on top of the law.

Modern jurisprudence took the other road. It pulled the law out of that net, stood it up as its own separate field of study, and then split it finer and finer into continental law, common law, religious law. The finer the split and the more specialized the talk, the farther it drifts from the ancestors' plain place. The law was never a thing standing alone. It is nature and the human heart and daily livelihood and character and the pressures of the age, all bound together, and pull any one of those away and the law goes out of shape.

Here is a way to picture it. A fish alive in water is a whole fish. Lift it out and lay it on the table, then cut it into head, body, tail, bone, and flesh, and every piece is there in plain sight, sorted more and more finely, but the living fish is gone. What modern jurisprudence does to the law is often exactly this. It cuts fine and it speaks with great expertise, and the living law, the one still joined to natural law, quietly disappears. The ancestors did not cut up the fish. They stood at the water's edge, pointed, and said, look, that is how it swims.

So this section sets down its first layer. The highest place belongs to natural law, not to the law itself. However high, however dense, however sacred a man-made law is built, it cannot rise above natural law, and any law that breaks natural law, however long it has stood, is in the end taken back by natural law.

Laozi has one more line for this. Heaven's way takes from what has too much and adds to what has too little. Man's way runs the other direction, taking from those who have too little to serve up to those who already have too much. Man-made law very often walks against natural law, and law that walks against it will in time be dragged back into line. So this section sets down a second layer. Man-made law can veer off from natural law for a while, and natural law will in the end pull it back to true.

The deepest posture the ancestors take toward the law is to lay it out and pass no verdict. In his Records of the Grand Historian, Sima Qian wrote of Shang Yang making his law and dying between the chariots, of the harsh officials whose severe codes mostly ended badly, and of the gentler officials who moved with the grain of things and often held on for generations. He draws no conclusion. He lays the facts out and lets the reader see. This section keeps to that same posture. It sets its two layers firmly in place and leaves the judging to the reader.

The next section takes the character wei and lifts it out of the prejudice of false, carrying it back to the place Xunzi first gave it. Reader, walk into the next section holding both of these in hand: natural law, and the made thing that is wei.

Credit to the ancestors; the mistakes are mine: Tiger Lyon.

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