VOLUME V, CHAPTER 2, SECTION 1

VOLUME V, CHAPTER 2, SECTION 1

The Law Is Never Far from Human Feeling

The last section set firmly that whom the law serves is decided by the position of the people who write, enforce, and interpret it. But once a law is made, on its way down to land on a living person, to be enforced and judged, it must cross one more river. Human feeling. This section takes up the household saying the law is never far from human feeling. It does not mean the law may give way to favor. It means the law must cross this river, because the ones who write it, enforce it, and judge under it are all people, and all people live inside human feeling.

Two prejudices sit on top of this old saying. The law is never far from human feeling has no earliest source. Unlike the words of the ancestors, it cannot be traced to a classic. The common people carried it up slowly across hundreds, maybe thousands, of years. Because it comes from the plainest living, ordinary people grasp it at a hearing. Yet most of the modern field of law has no use for it. The textbook speaks of procedural justice, of universality, of predictability, of the prince and the commoner sharing the same guilt. In that language human feeling has become almost a dirty word, set beside pulling strings through a back door and bending the law for private favor, treated as the great enemy of the law. Read the law is never far from human feeling to a modern professor of law and he is likely to frown, for in his eyes it is nearly the plainest proof that the Chinese legal tradition falls short of the advanced rule of law of the West. What this section does is carry the saying out of two prejudices. The first takes human feeling to be personal connection and the back door. The second uses the two-part frame of rule of law against rule of man to throw human feeling onto the far side, opposite the rule of law. Set both pulls down and the saying's real position comes clear.

The original sense of human feeling is the common feeling of a person, the root of a person as a person. In Chinese, human feeling did not first mean personal connection. It meant the common feeling of human beings, the feelings and responses a living person naturally has. A father loving his son is human feeling. A son missing his father is human feeling. The care between husband and wife is human feeling. The turn in the chest that cannot bear to watch a stranger suffer is human feeling too. Trust between friends is human feeling. Help between neighbors is human feeling. None of these are rules taught by anyone. They are what is already in the human heart.

Human feeling is not the root of corruption. It is the root of a person as a person. A person without human feeling is no longer a person. A law wholly cut off from human feeling is no longer a law made for people. See this layer and you can begin to say what the old saying actually shields.

Imagine a law that takes no account of human feeling at all. A person who stole a sum of money to buy medicine for a gravely ill mother, and a habitual thief who stole the same sum to squander, look identical in the eyes of that law, sentenced not a hair apart. A mother who raised a hand shielding her child, and a brute who set out to do harm, look no different in its eyes either. Such a law seems most fair and is in fact most inhuman, because it takes living people for so many symbols with no cause and no circumstance. The people's one line, the law is never far from human feeling, shields exactly this. The law is for the use of living people, so it cannot pretend that living people have no circumstance. A law cut off from human feeling, however complete, will run into trouble in the enforcing, because the one enforcing it cannot cut himself off from human feeling. This is the rule of position, not the fault of any one person.

Confucius, in his father shields the son, set exactly this layer. Around 500 BC, Confucius wrote a famous line. The father shields the son, the son shields the father, and the straight is found within this. The setting was that the Duke of She told Confucius, in our country there is a straight man, his father stole a sheep and he came forward to bear witness against him. Confucius answered, the straight men of our country are different, the father shields the son and the son shields the father, and true straightness lies right in here. This line has been argued over for twenty-five hundred years, and the modern reading is mostly to cover for and to bend for private favor. But that is not what Confucius meant. Confucius is speaking of the tension between the law and human feeling. That the father stole a sheep is a matter on the plane of law. Whether the son should accuse his father with his own hand is a matter on the plane of human feeling. Confucius does not mean the son should cover up. He means that the human feeling of father and son standing by each other is itself a kind of straightness. The law may pursue the theft of the sheep, but it should not force the son to send his father to prison with his own hand. Force that and the law breaks a human feeling higher than this one case, and so breaks natural law.

This layer is not the Chinese world's alone. In the twenty-first century the law of many countries has a clause on the privilege against testifying about kin, under which a spouse, a parent, a child may not be compelled to testify against a close relative. The law itself admits that to force a person to send a close relative to prison with his own hand tears something deeper than one case. Confucius set this very position twenty-five hundred years ago in his father shields the son, only earlier and plainer.

Around 300 BC, Mencius weighed a like problem. A student asked, if the father of the sage-king Shun had killed a man, what would Shun do. Mencius answered that Shun would give up the throne, carry his father on his back, flee to the edge of the sea, and never return for the rest of his life. As the Son of Heaven, Shun could not interfere with the law, and if the law would pursue, let it pursue. As a son, he could not hand his father over with his own hand either. So he stepped down from the public position to the private position, let the law walk its road and human feeling walk its road, and neither collided. This is the Chinese world's deepest handling of the law and human feeling. It does not use the law to crush human feeling, nor human feeling to crush the law. It admits both are real, and finds a position where both can be kept whole.

Around 150 BC, Dong Zhongshu made this layer into a whole judicial practice, called deciding cases by the Spring and Autumn. In hearing a case, he said, one must root it in the deed and trace it to the intent. Dong Zhongshu says a case must look at the fact and, more, at the motive. The one whose motive is crooked is pursued before the act is even complete. The one whose heart was good is dealt with lightly. This practice formally brought human feeling into judicial decision.

The same deed, a different motive, and the verdict differs. Two men each took money not their own. One had eyed it long and set a trap on purpose to defraud. One had no rice in the pot and no road to borrow, and took first, meaning to return it later. On the books the sum is the same, the nature worlds apart. Look only at the clause of how much was taken and the two are one and the same. But once motive and circumstance are set in, who should be dealt with heavily and who spared is at once sorted out. Dong Zhongshu's deciding cases by the Spring and Autumn wanted exactly this, not to fix only on the deed but to see how the person was thinking at the time and to what wall he had been driven. This ran from the Han down to the end of the Qing, more than a thousand years, one of the plainest cords in the Chinese legal system. It does not mean judging every case by the letter of the Spring and Autumn. It means the judging must take human feeling, motive, and situation together, not only the surface of the clause. A clause can be written with great precision. Four words, kill a man and you die. But the actual people, some premeditated, some in a moment of passion, some under coercion, some in self-defense, some to save another, the differences vast beyond compare, and to judge them all by four words is to press living people into a dead clause.

There is one more layer hidden here. A clause can be written to the letter. The touch cannot be written to the letter. As Laozi said, governing a great state is like cooking a small fish, you cannot keep turning it, but when to turn it, with how much force, how high the flame, none of that can be written into the recipe, it all rests on the feel of the hand. Enforcing a law is the same. The clause can be written into the code, but when to be lenient, when strict, how to hold that measure of touch, cannot be written into the code. That measure of touch is human feeling.

But this saying too is easily abused. Read crooked, the law is never far from human feeling becomes the law may give way to human feeling. An official takes a bribe and calls it the give and take of human feeling. A judge bends the law for private favor and calls it out of regard for an old tie. This human feeling is no longer the human feeling Confucius and Mencius spoke of. It is those two words taken up as a fig leaf for corruption. Any true saying can be abused. Set well, this saying is the Chinese world's deepest wisdom about the law. Used crooked, it is a breach through which several thousand years of judicial corruption ran. Both faces have to be set out.

The telling has, in fact, a plain line. True human feeling shields the position a person ought to have, the closeness of father and son, the turn of the heart in a moment of danger, the allowance made for another's circumstance, and it seizes nothing from another and drains nothing from the public. False human feeling, under the name of a tie, does the deed of seizing from another and draining from the public, takes the payment and tips the clause aside, so the one who ought to be shielded is not shielded and the one who ought not to gain gains. One sets both law and feeling straight, the other uses feeling as a screen to twist the law crooked. Take that line and measure, and true and false part at once.

Turn the lens to the West and there is a vein that comes near the position of human feeling too. The nearest is equity in the common-law tradition. When judging strictly by the common law would work an injustice, a judge could bring in the consideration of equity and adjust the verdict to the situation. Around 1340, England began to set up a dedicated court of chancery to handle cases the common law was too rigid to resolve, the judge deciding by conscience rather than by the clause alone. This has a likeness in structure to the Chinese deciding cases by the Spring and Autumn.

But the positions are not quite the same. Equity is a supplement outside the common law, an exception, a special circumstance. Deciding cases by the Spring and Autumn soaked through the whole judicial process, the ordinary state of things, a consideration in every case. Set the two traditions side by side and let the reader see. Yet whichever it is, both run into the same problem. Who judges the human feeling. The one who judges is, again, a person, with his own position, bias, and interest. Judge the feeling right and the case comes alive. Judge it crooked and human feeling becomes a pretext for corruption. This is exactly the Wei of the last section. A made thing forever leans on people, and people are forever imperfect.

So this section sets a fifth layer. The law must, in the end, cross the river of human feeling, and that river is itself Wei, and it too can tilt. Setting this layer is not to have the reader believe long live human feeling, nor to have him suspect human feeling as all evil. It is to have him see clearly that the law and human feeling are not two things opposed. The law is dead, human feeling is alive, and the two must meet. Where they meet is the enforcer, the judge, the decider of cases, these living people. In one hand they hold the clause, in the other they live inside human feeling, and every verdict is a particular meeting of law and feeling.

Judge it well and both law and feeling are cared for. Judge it crooked and it may be that the law stands and feeling is wounded, or feeling stands and the law is wounded. There is no perfect verdict, only a verdict nearer natural law and a verdict further from it. Confucius said father shields son, Mencius said Shun carried his father to the edge of the sea, Dong Zhongshu said decide cases by the Spring and Autumn, the people said the law is never far from human feeling, two thousand years, one vein, only the wording different. The next time you read of a case, see for yourself, in this case where do law and feeling meet, is the verdict a little more law or a little more feeling. See that and you understand why some verdicts leave a person convinced and some leave a person cold.

The next section opens the saying the law cannot govern the many. Like the law is never far from human feeling, this is one more household saying the mainstream of law looks down on and ordinary people all understand. Let the reader carry this set of tools, natural law, Wei, whom the law serves is in motion, and the law must cross human feeling, into the section that follows.

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