VOLUME V, CHAPTER 1, SECTION 3

VOLUME V, CHAPTER 1, SECTION 3

Whom the Law Serves

The last section recognized the character Wei and set firmly that the law is a made thing and never perfect. This section asks the line that lands closest to the bone. Whom is the law actually written for. Every person living inside the net of law has asked it. But the answer given on the surface and the answer people carry in their chests seldom line up. This section sets the two answers side by side and lets the reader see for himself where the seam between them cracks open.

Bring out first the ancestor who said this most clearly and earliest, Guan Zhong. Around 700 BC, Guan Zhong wrote one line in the state of Qi. In every way of governing a state, one must first make the people rich. Guan Zhong is not saying set up law first and then govern. He is saying make the people rich first, and only then speak of governing. This stands on a wholly different plane from the modern habit of enthroning the rule of law itself as the highest value. The modern account tends to feel that if only the law is complete, the enforcement strict, the procedure fair, then governing follows of itself. Guan Zhong saw through this twenty-seven hundred years ago. However complete the law, a poor people is still hard to govern, and once the people are rich, the law need not be so elaborate and governing runs smooth on its own.

Weigh this carefully. Guan Zhong did not put the law first. He put the people's wealth first, and the law is only one tool ranked behind it. A tool serves an end, and the end is the master. Whether a law is good is not measured by how tidy or how grand it is written, but by whether, in the end, it made the common people's days better. Set that order straight and much else comes clear.

Whom the law serves has two answers, one written on the surface, one carried in the chest. The surface answer is written into nearly every modern constitution and law textbook. The law serves the people. The law protects the rights of citizens. All are equal before the law. But the people carry another line in their chests. The law is the strong party's tool for holding down the weak. This line has no earliest source. No jurist set it, no ism shouted it. It came up slowly, in the streets and lanes, out of the mouths of one person after another the law had worn down. And ordinary people grasp it at a hearing, grasp it more thoroughly than any statute. Set the two side by side. On the surface, the law protects the people. In the chest, the law is the strong party's tool for holding down the weak. What this section does is not to judge which is right. It sets both on the table and lets the reader see where the crack between them opens.

To see the crack, go back to that character Wei. By Xunzi's Wei, the law is a made thing, and the one who makes it has his own position, his own interest, his own bias. Follow that and whom the law serves has an answer plain to the point of bareness. It depends on who makes the law. Around 350 BC, Shen Dao said one line. The Son of Heaven is set up for the sake of all under Heaven, not all under Heaven set up for the sake of the Son of Heaven. He means the seat of the ruler is set up for the world, not the world set up as the ruler's private estate. This line parts the position from the purpose of the position. The same act, setting up a ruler, can be set up for the world or set up for the ruler himself. On the surface both are setting up a ruler. Underneath, whom they lean toward is exactly opposite.

Lay that over the law and the reasoning is the same. The same act, setting up a law, can be set up for the people or set up for the lawmaker himself. The clauses of the law are dead. The one who makes the law is alive. Whichever side the live person stands on, the dead clauses lean.

This tension is no idle talk. It played out again and again across the dynasties, and two samples make it plain. In the early Han, Xiao He set for the founding emperor the three-article code, kill a man and you die, wound a man or steal and you pay in proportion. Three lines and the law was set. Its content was plain, its enforcement easy, and the common people grasped it at a hearing and, grasping it, were content. The early decades of Han rest and recovery had this plain law as their ground color, and the simpler the law, the more room the people had to breathe. But after Emperor Wu of Han the law grew elaborate. Men like Zhang Tang and Zhao Yu drew up fine and dense statutes, which on the surface completed the law and in fact left openings for levying taxes, striking at the powerful, and controlling the common folk. The face of the law had not changed, but whom it served slid quietly from the people to the treasury. By Emperor Wu's late years the wandering dispossessed grew many and thieves rose everywhere, and he issued an edict of self-reproach, admitting the policies of those years had cut the people too deep.

Note the deepest stroke here. The clauses of the law barely changed. What changed was whose head it landed on and to whom it spoke. The same body of law, in a flourishing age it shielded the people, and in the hands of a harsh government it became a rake for scraping the people. What changed was not the law but the position of the hand holding it. Sima Qian, in his account of the harsh officials, wrote this stretch in fine detail and added not a word of comment, setting down their sayings, their methods, and their ends one by one, and letting the reader see for himself whom the law they made and enforced was actually serving.

The Confucians and the Legalists split here into two veins. Around 300 BC, Mencius wrote it most directly. The people are the most precious, the altars of the state come next, the ruler is the lightest. Mencius says the people are most precious, the state next, the ruler lightest, and all institutions, the law among them, should be set in that order. Yet across the dynasties the actual running ran the other way, the ruler foremost, the people bedded at the bottom, the law serving the ruler first, then the state, and only last the people. Mencius knew too that the people are the most precious is a layer of ought, and the rulers who truly reached it can be counted on the fingers. Around 250 BC, Han Fei wrote the other face. The law is what is drawn up in the registers, set in the offices, and proclaimed to the people. He sets the law's position plainly. Law is made by the offices and proclaimed down to the people, not made by the people together, and still less used to bind the offices. Han Fei is a Legalist, and his placement of the law is top over bottom, a tool by which those seated above govern those below. One vein is the Confucian people as the root, one is the Legalist ruler as the root, and for two thousand years the two pulled at each other across the dynasties, mostly in the form of Confucian outside and Legalist inside, the mouth speaking of the people's root while the hand worked the arts of control. Hold these two veins and you can look at the law of any dynasty and see which side, at that moment, it leaned toward.

Turn the lens to the West and the same pull is there. In 1776, after the founding of the United States, several of its framers set down a tradition of law. The most widely repeated strand of that tradition holds that the purpose of law is to bind the government, not to bind the citizen. This line is recited again and again in American constitutional talk, often laid to one framer or another, its exact source in fact hard to pin down. What does have a source in black and white is Madison. If men were angels, no government would be necessary. This position is the exact reverse of the Legalist law is a tool from the top down. The American framers wanted to set the law as a binding from the bottom up, the people writing the constitution, the constitution binding the government. On the page this stands a level above the Legalist. The law is no longer a whip in the hand of those above, but a bridle the ones below hold on the ones above.

That is the word on paper, and the word on paper is one thing. The deed piled up over several hundred years is another. Set out the actual running of American law over two hundred and some years and the record that gathers is that the government has bound the citizen with law far more often than the citizen has bound the government with law. The cause is not that the constitution was designed badly. It is that the ones holding power are, likewise, the party with more than enough. A person who already holds power, however solemnly he swears to bind himself, at the pinch will still lean by nature toward shielding what has more than enough. However finely a system is designed, it can hardly force a power-holder to truly bind himself. The word written into the document, and the behavior gathered over centuries, and the gap between the two, is Xunzi's Wei. This stretch and the Chinese one are set side by side, the same ruler for both, the judgment left to the reader, no need to rank one above the other.

Read together, the two ends set out a plainer conclusion. East or West, so long as power lacks a true check over its head, the drift of the law cannot be stopped. The only difference is which structure props more, and sturdier, over power's head, and in that one the force pulling the law back toward the people is a little greater.

Why does the law, across the ages and everywhere, keep sliding from shielding the weak to helping the strong. Laozi named the root in one line, quoted before. 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 to offer up to what has more than enough. When the law is set up, the mouth speaks of adding to what has not enough, and once it actually runs it turns into offering up to what has more than enough. Why. Here is the plainest reason. The ones who write the law, enforce it, and interpret it are, the great majority of them, already among the party with more than enough. Law made, enforced, and read by those with more than enough begins, quite naturally, to lean toward those with more than enough.

Mark this well. It is not that the lawmakers are all bad people. It is that each person sees the world from his own position, and a person with more than enough, even with a good heart, can hardly truly crouch down and look at a thing from the position of one with not enough. The law he makes carries the bias of that position of its own accord. This is set by position, not by conscience. To curse the lawmaker as bad misses the mark. Only seeing that this is the doing of position is to see the root.

So has the law no cure. The ancestors say there is a cure, but the condition is harsh. Guan Zhong said one must first make the people rich, and to truly do it the lawmaker has to lower his own position of his own will and lift the people's up. Shen Dao said the Son of Heaven is set up for the sake of all under Heaven, and the moment the Son of Heaven takes the chair, the three words for all under Heaven are the first thing he forgets. Mencius said the people are the most precious, and admitted too that the rulers who truly reached it can be counted on the fingers. The ancestors all saw the same thing. The law truly serving the people is a very hard position to hold. It takes culture, education, the watching of the group, and the lawmaker's own cultivation, all propping it together, and let any one prop fall and the law slides back toward offering up to what has more than enough. This is not pessimism. It is setting the truth out, so a person knows where this position is precious and where it is hard.

So this section sets a fourth layer. Whom the law serves is not decided by the words of the law. It is decided by the position of the people who write, enforce, and interpret it. Stand the lawmaker on the side of more than enough and the law serves more than enough. Stand him on the side of the people and it serves the people. Stand him on the side of himself and it serves him. The words are the clothing, the position is the body. However bright the clothing, it cannot cover which way the body leans.

Go back to the section's opening. On the surface, the law serves the people. In the chest, the law is the strong party's tool for holding down the weak. Guan Zhong said first make the people rich, Shen Dao said the ruler is set up for the world, Mencius said the people are most precious, Han Fei said the law is proclaimed by the offices to the people, Madison said bind the government, Laozi said it takes from what has not enough to offer up to what has more than enough. On the surface this set of sayings fights among itself. Underneath it is one vein. Whom the law serves is a question forever in motion, moving as the lawmaker, the enforcer, the watching of the group, and the passing-on of culture move, with no answer good once and for all.

This section does not mean to tell the reader whom the law ought to serve. It means to hand the reader a ruler, that whom the law serves is a question forever in motion, and take it to every law near you, every act of enforcement, every verdict. The next time you read a new law, ask yourself, on which side does the one who made it stand, on which side the one who enforces it, on which side the one who interprets it. Ask that through and you know whom this law, at this moment, actually serves.

The next section opens the household saying the law is never far from human feeling, and carries it out of the prejudice of the back door and favoritism, back to the position it first held. Let the reader carry this set of tools, natural law, Wei, and whom the law serves is in motion, into the section that follows.

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