VOLUME V, CHAPTER 2
Three Old Sayings of Ordinary People, Where the Base of Law Sits
The last chapter set firm what law is, wei, and whom the law serves, building from the first layer up to the fourth. But once a law is set up, to be enforced and judged on living people it must still cross a river on the way, human feeling. This chapter walks on down. It picks out three old sayings that mainstream jurisprudence looks down on and ordinary people say every day: the law is nothing beyond human feeling, the law does not punish the crowd, and no one is perfect. These three sound like chicken soup for the soul, yet every one of them hides a deep layer the ancestors laid down long ago. What this chapter does is lift them out of two layers of prejudice, one saying at a time, and give them back their proper position.
The first section is about the law being nothing beyond human feeling. Human feeling is not backdoor deals or favoritism. It is common human nature, the root of being human. This section first imagines a law with no human feeling in it at all: one person steals a sum of money to gather medicine money for a gravely ill mother, a habitual thief steals the same sum to squander, and in its eyes the two are exactly the same. Confucius speaks of a father concealing his son and a son concealing his father, and uprightness lies within that. That is not shielding a crime. It is that the law should not force a son to send his own father to prison with his own hands. Mencius says that if Shun's father had killed a man, Shun would rather give up the realm and carry his father away on his back. Dong Zhongshu set up judging cases by the Spring and Autumn Annals, judging the crime by the heart. He says, when judging cases by the Spring and Autumn Annals, one must examine the facts and trace the original intent: in a case, look at the facts, and look even closer at the motive. Equity in the West reached the same layer too. This saying is also easily abused, and a bribe gets called interpersonal courtesy. But real human feeling protects a position a person ought to hold, while fake human feeling uses the name of personal ties to take from others and harm the public. Human feeling is itself wei too, and can lean to one side, and whether law or feeling judges right still depends on the one judging. This sets the fifth layer.
The second section is about the law not punishing the crowd. The enforcement capacity of law has a ceiling, and once the number of violators passes the boundary, the law can no longer govern. This is not the failure of law. It is the natural boundary of law as a man-made tool. A few traffic officers at an intersection can handle a few people running a red light with room to spare, but when thousands cross together, they cannot even stop them. Laozi says the more laws are put on display, the more thieves there are. The line Chen Sheng and Wu Guang raised when driven to revolt at Daze Village, the world has suffered under Qin for long, is the earliest sample of this layer, and the thirteen years of American Prohibition are the same play. As laws multiply, the scope of violation keeps expanding. A street stall has run for decades, one law is added, and the very next morning the law-abiding vendors have all become violators. What Confucius wants is the line, what is necessary is to cause litigation not to arise at all. What Huang Zongxi looks at is the sorrow or joy of the ten thousand people. The lawmaker's responsibility is to keep the law within the boundary where it can operate, not to create more violators out of thin air. This sets the sixth layer.
The third section is about no one being perfect, and it digs out the deepest foundation of law. The ones who make laws, enforce them, judge cases and obey laws are all living people, and people are not perfect, so the law is never perfect. Under mainstream jurisprudence hides an assumption that the law can be made more and more perfect, but a machine can be calibrated to zero error, and a person cannot. Xunzi says human nature is evil, and its goodness is wei. Confucius says, I am fortunate, if I make a mistake, people are sure to know it. Mencius says the gentlemen of old corrected their mistakes when they made them. Laozi says he who knows himself is enlightened. Wang Yangming says it is easy to defeat the bandits in the mountains and difficult to defeat the bandits in the heart. Madison says that if men were angels, no government would be necessary. Sima Qian writes every person's achievements and every person's errors, and not one of them is perfect. The more a person thinks himself perfect, the heavier his hand tends to be, because he leaves no door open for correcting errors. Acknowledging this layer is clarity, denying it is blindness. This section gathers all seven layers so far into one complete net, and sets the seventh layer.
These three sections build from the fifth layer to the seventh, and set the foundation of law at its very deepest. Walk through this chapter and the reader will see that the old sayings looked down on in ordinary people's mouths often stand closer to the truth of law than the big words in textbooks. Speaking only of the law, you can never finish speaking of the law. The next chapter connects this net into the larger net of the four institutions, culture, economy, politics and law. The stance of this chapter has not changed either. Every true saying is laid out with both sides showing. It lays out positions, draws no conclusion, and leaves the judgment to the reader.
Contents
Section One. The Law Is Never Far from Human Feeling.
Section Two. The Law Cannot Govern the Many.
Section Three. No One Is Without Fault, and So the Law Is Never Perfect.
Credit to the ancestors; the mistakes are mine: Tiger Lyon.